HOUSE OF LORDS

ASHINGTON PIGGERIES v HILL [1972] AC 441

24 February 1971

Full text LORD HODSON:

My Lords, in July 1961 the first case was noticed of a new and hitherto unknown disease afflicting mink which are bred in a large number of farms in this country. A male kit was found with a grossly enlarged abdomen and died within a few days. Similar cases were reported from that time onwards in various parts of the country. The common factor was that all the afflicted mink had been fed a fortified cereal mink food marketed under the brand name ‘King Size’ and made up according to a formula. This formula emanated from a Mr Udall who, since the early nineteen-fifties, had been concerned with the breeding of mink in the Wimborne area and was recognised as an expert on mink farming.

The company, Ashington Piggeries Ltd, the defendants in the action, was controlled by Mr Udall. In 1960 he approached a Mr Granger, who was the personal assistant to the managing director of the plaintiff company Christopher Hill Ltd, with a view to the latter company compounding for him a mink food to be called ‘King Size’ in accordance with a formula prepared by himself. This last-named company is an old-established and well-known animal feeding stuff compounder carrying on business at Poole. At this time the company was compounding 167 varieties of feeding stuffs principally for poultry, pheasants, calves and pigs but, until the events giving rise to this case, had had no experience or knowledge of mink.

..The contract of sale was entered into in May 1960 and deliveries of ‘King Size’ commenced immediately either to the defendants or to their customers. Between May 1960 and the end of March 1961 ‘King Size’ had been supplied to about 100 farms, but no real trouble arose until the end of July 1961. Mr Udall's herd of mink was affected and he began to

suffer increasing losses. ‘King Size’ came under suspicion as being the cause of the outbreak of the severe liver disease from which the animals were suffering.

These proceedings were started by the plaintiffs claiming the price of goods sold and delivered, namely, the ‘King Size.’ To this the defendants answered that the goods were worthless…It was said that the meal was manufactured from herring preserved with sodium nitrite in circumstances which rendered the meal toxic to animals and in particular mink. The substance said to be toxic was dimethylnitrasomine (DMNA) which was not a constituent of the formula…The findings of fact made at the trial…are that the cause of the liver disease in the mink was ‘King Size’ and that the toxic element was DMNA which was in the herring meal because of the use of sodium nitrite for preservation purposes.

…The defendants have established that the mink were poisoned by ingestion of ‘King Size’ because it contained Norwegian herring meal contaminated by DMNA used in the processing of herring to which sodium nitrite had been applied as a preservative.

…[I]t is necessary to consider the legal issues which arise between the plaintiffs and defendants. Section 13 of the Sale of Goods Act 1893, so far as material, reads: ‘Where there is a contract for the sale of goods by description, there is an implied condition that the goods shall correspond with the description; ...’

The language used is directed to the identification of goods. The point is made by Channell J. in Varley v Whipp [1900] 1 QB 513, 516: ‘The term 'sale of goods by description' must apply to all cases where the purchaser has not seen the goods, but is relying on the description alone.’

This is not to say that it may not apply even where the purchaser has seen the goods if the deviation from the description is not apparent, but this has no bearing on the facts of the instant case. The essential point is that identification of the goods is that with which the section is concerned. The defendants rely on the oft quoted decision of Roche J. in Pinnock Brothers v Lewis Peat Ltd [1923] 1 KB 690. This related to the sale of East African coppery cake. The goods were so adulterated with castor

seed as to be poisonous to cattle. It was held that the goods were not properly described as coppery cake at all and that the sellers were not protected by a clause in the contract that:

‘The goods are not warranted free from defect rendering same unmerchantable which would not be apparent on reasonable examination, any statute or rule of law to the contrary notwithstanding.’

The relevant breach of description relates only to the herring meal element in the formula. The defendants say this was not herring meal, it was herring meal plus DMNA which is not an authorised ingredient of the formula. I agree with the Court of Appeal in arriving at the conclusion that the evidence does not support the view that DMNA was something added to the herring meal, as the castor seed was to the coppery cake. One of the defendants' own witnesses (Dr. Pearson) was disposed to agree that DMNA was something in the herring meal which had gone wrong. As the Court of Appeal pointed out, sodium nitrite was used as a preservative just as salt had been previously used. It produced a chemical reaction in some cases which produced DMNA. In my opinion, it is working the word ‘description’ too hard to say that ‘herring meal’ was a misdescription. The herring meal was contaminated but no poisonous substance was added to it so as to make the description ‘herring meal’ erroneous.

…The claim based on section 13 accordingly must, in my opinion, fail ...

Full text

LORD HODSON:

My Lords, in July 1961 the first case was noticed of a new and hitherto unknown disease afflicting mink which are bred in a large number of farms in this county. A male kit was found with a grossly enlarged abdomen and died within a few days. Similar cases were reported from that time onwards in various parts of the country. The common factor was that all the afflicted mink had been fed a fortified cereal mink food marketed under the brand name ‘King Size’ and made up according to a formula. This formula emanated from a Mr Udall who, since the early

nineteen fifties, had been concerned with the breeding of mink in the Wimborne area and was recognised as an expert on mink farming. The company, Ashington Piggeries Ltd, the appellants, the defendants in the action, was controlled by Mr Udall. In 1960 he approached a Mr Granger, who was the personal assistant to the managing director of the respondents (Christopher Hill Ltd) with a view to the latter company compounding for him a mink food to be called ‘King Size’ in accordance with a formula prepared by himself. The respondents are old established and well-known animal feeding stuff compounders carrying on business at Poole. At this time the respondents were compounding 167 varieties of feeding stuffs principally for poultry, pheasants, calves and pigs but, until the events giving rise to this case, had had no experience or knowledge of mink.

To put the matter shortly, the ingredients were to be supplied by the respondents and were to be of the best quality available. These were commodities which the respondents were in the habit of handling in the course of their business and the manufacture of compounds for animal feeding to customers’ formula was something which the trial judge ([1968] 1 Lloyd’s Rep 457) found was something which the respondents habitually undertook. The contract of sale was entered into in May 1960 and deliveries of ‘King Size’ commenced immediately either to the appellants or to their customers. Between May 1960 and the end of March 1961 ‘King Size’ had been supplied to about 100 farms, but no real trouble arose until the end of July 1961. Mr Udall’s herd of mink was affected and he began to suffer increasing losses. ‘King Size’ came under suspicion as being the cause of the outbreak of the severe liver disease from which the animals were suffering.

These proceedings were started by the respondents claiming the price of goods sold and delivered, namely the ‘King Size’. To this the appellants answered that the goods were worthless and relied in the first instance on a change made in the formula of the goods without their consent, making their attack on the use of an anti-oxidant called Santoquin no 6 as being the cause of the liver disease in the mink. After several days this attack was abandoned and in its place the attack was directed against Norwegian herring meal claimed to have been included in ‘King Size’ and to have been the cause of the toxin which killed the mink. It was said that the

meal was manufactured from herring preserved with sodium nitrite in circumstances which rendered the meal toxic to animals and in particular mink. The substance said to be toxic was dimethylnitrosamine (DMNA) which was not a constituent of the formula. There was at the trial a conflict as to causation which no longer subsists. The findings of fact made at the trial and no longer disputed are that the cause of the liver disease in the mink was ‘King Size’ and that the toxic element was DMNA which was in the herring meal because of the use of sodium nitrite for preservation purposes.

A great deal turns in this case on the use of the word ‘toxic’ which is in an emotive word equivalent to poisonous - and I must return to it in view of the difference of opinion between the trial judge ([1968] 1 Lloyd’s Rep 457) and the Court of Appeal ([1969] 3 All ER 1496, [1969] 1 Lloyd’s Rep 425) as to the application of the Sale of Goods Act 1893, in particular s 14(1), to the facts of this case. The appellants have established that the mink were poisoned by ingestion of ‘King Size’ because it contained Norwegian herring meal contaminated by DMNA used in the processing of herring to which sodium nitrite had been applied as a preservative. The Norwegian herring meal had been obtained by the respondents from Norsildmel, the third party in these proceedings, under a written contract which much be treated separately from the contract between the respondents and the appellants. It differs materially from that made between the original parties but involves consideration of the same sections of the Sale of Goods Act 1893.

The herring meal which caused the damage was found to be 8 ½ tons out of 333 ½ tons of herring meal delivered to the respondents at Poole from the motor vessel Hansa which had come from factory 72 at Honningsvaag in Norway. Of the balance of 325 tons, 21 tons were sold to ordinary (non mink) farms as feeding stuff and the rest was used by the respondents in their various compounds. No animal which consumed any of this balance suffered any injury so far as is known.

The question of causation being out of the way, it is necessary to consider the legal issues which arise between the respondents and appellants. Section 13 of the Sale of Goods Act 1893, so far as material, provides:

‘Where there is a contract for the sale of goods by description, there is an implied condition that the goods shall correspond with the description;…’

The language used is directed to the identification of goods. The point is made by Channell J in Varley v Whipp ([1900] 1 QB 513 at 516): ‘The term ‘sale of goods by description’ must apply to all cases where the purchaser has not seen the goods, but is relying on the description alone.’ This is not to say that it may not apply even where the purchaser has seen the goods if the deviation from the description is not apparent, but this has no bearing on the facts of the instant case. The essential point is that identification of the goods is that with which the section is concerned. The appellants rely on the oft quoted decision of Roche J in Pinnock Brothers v Lewis and Peat Ltd. This related to the sale of East African copra cake. The goods were so adulterated with castor seed as to be poisonous to cattle. It was held that the goods were not properly described as copra cake at all and that the sellers were not protected by a clause in the contract that:

‘… the goods are not warranted free from defect rendering same unmerchantable which would not be apparent on reasonable examination, any statute or rule of law to the contrary notwithstanding.’ The relevant breach of description relates only to the herring meal element in the formula. The appellants say that this was not herring meal, it was herring meal plus DMNA which is not an authorised ingredient of the formula. I agree with the Court of Appeal ([1969] 3 All ER 1496, [1969] 2 Lloyd’s Rep 425) in arriving at the conclusion that the evidence does not support the view that DMNA was something added to the herring meal, as the castor seed was to the copra cake. One of the appellants’ own witnesses (Dr Pearson) was disposed to agree that DMNA was something in the herring meal which had gone wrong. As the Court of Appeal ([1969] 3 All ER 1496, [1969] 2 Lloyd’s Rep 425) pointed out, sodium nitrite was used as a preservative just as salt had been previously used. It produced a chemical reaction in some cases which produced DMNA. In my opinion, it is working the word ‘description’ too hard to say that ‘herring meal’ was a misdescription. The herring meal was contaminated but no poisonous substance was added to it so as to make the description ‘herring meal’ erroneous. The

distinction between ‘description’ of goods and their quality is made by Lord Dunedin in Manchester Liners Ltd v Rea Ltd ([1922] 2 AC 74 at 80, [1922] All ER Rep 605 at 608):

‘The tender of anything that does not tally with the specified description is not compliance with the contract. But when the article tendered does comply with that specific description, and the objection on the buyer’s part is an objection to quality alone, then I think s. 14, sub-s. 1, settles the standard, and the only standard by which the matter is to be judged.’

The claim based on s 13 accordingly must, in my opinion, fail.

This brings me to consider s 14(1) which, so far as material, provides:

‘Where the buyer, expressly or by implication, makes known to the seller the particular purpose for which the goods are required, so as to show that the buyer relies on the seller’s skill or judgment, and the goods are of a description which it is in the course of the seller’s business to supply … there is an implied condition that the goods shall be reasonably fit for such purpose …’

There is no dispute but that the appellants expressly made known to the respondents the particular purpose for which the goods were required, namely, as food for mink, nor is there any dispute but that the goods were unfit for that purpose. Did the appellants rely on the skill and judgment of the plaintiffs to any and, if so, to what extent? The learned judge’s finding ([1968] 1 Lloyd’s Rep at 480), quoted in the judgment of the Court of Appeal ([1969] 3 All ER at 1514, [1969] 2 Lloyd’s Rep at 460) reads:

‘While Mr Udall made it clear to the [respondents] that the compound which was to be called ‘King Size’ was wanted for one purpose and one only, namely, as a feed for mink, I find that he made it no less clear to them that he was only relying on their skill and judgment to a strictly limited extent, namely, for the selection and acquisition of the various ingredients set out in the formula and for the actual mixing of their ingredients. As to whether the compound so made up would prove a suitable and good food for mink, he relied entirely upon his own

judgment and experience. I am satisfied not only that this was in fact the position but that both parties were aware of it and accepted it from the start. On the one hand Mr. Udall was relying on his own judgment as to what his formula should contain and the levels at which the various ingredients in it should be included. On the other, he was relying, and had no alternative but to rely, upon the [respondents] to obtain the ingredients, to see they were of good quality and not to use ingredients which, as a result of contamination, were toxic.’

In using the word ‘toxic’ the learned judge was clearly not limiting the adjective to the effect on mink alone. He expressly found, and there was evidence to support his finding, that all animals are sensitive to DMNA poisoning though mink are more sensitive than most. The level of DMNA was sufficiently high to be lethal to mink which are animals to which herring meal can properly be fed. There was no evidence as to the lethal dosage for other animals but, in disagreement with the Court of Appeal ([1969] 3 All ER 1496, [1969] 2 Lloyd’s Rep 425), it appears to me that the toxicity covers the range of animals for which the respondents normally supply feeding stuff. As a result of contamination one of the ingredients, namely, the Norwegian herring meal, was toxic and the appellants were entitled to rely on the respondents not to produce food poisonous to mink, leaving out altogether any question of the idiosyncrasy of mink.

The appellants have proved a general defect and that their animals were poisoned thereby. The expert called by the third party, Nils Koppang, an expert from the department of pathology Veterinary College of Oslo, Norway, described the disease which had existed as early as 1957. He himself referred to toxic doses in connection with DMNA in such a way that it appears that the toxic condition was not a peculiar one such as is illustrated by Griffiths v Peter Conway Ltd, a case relied on as a decision in favour of the seller. That was a case concerning the purchase of a Harris tweed coat by a woman with an abnormally sensitive skin who did not disclose the fact to the seller. She failed in her action because the unsuitability of the coat arose from the special state of affairs relating to the buyer, of which the seller was not aware. It is otherwise here, where DMNA is shown to have been toxic to all animals, not only to mink.

It is well settled that the reliance on the seller’s skill and judgment need not be total or exclusive: see Cammell Laird & Co v Manganese Bronze and Brass Co Ltd ([1934] AC 402 at 427, [1934] All ER Rep 1 at 12, 13) per Lord Wright, and the earlier case of Medway Oil and Storage Co Ltd v Silica Gel Corpn ((1928) 33 Com Cas 195 at 196) per Lord Sumner. Before the Sale of Goods Act 1893 in Drummond & Sons v Van Ingen & Co ((1887) 12 App Cas 284 at 297) Lord MacNaghten pointed out that in matters exclusively within the province of the manufacturer the merchant relies on the manufacturer’s skill. I think the learned judge correctly applied these authorities. He pointed out that the propellers in the Cammell Laird case had to be made to the buyer’s detailed specification; nevertheless, it was held that the suppliers gave an implied warranty under s 14(1) that they would be reasonably fit to be used in the ships for which they were required. The suppliers were not warranting the buyer’s design but warranting the fitness of the propellers within the field in which they were called on to exercise their own discretion. It may be thought that the Cammell Laird case went a long way against the vendors but it seems to be a close parallel to the instant case. When the buyers, that is the appellants, made a detailed specification of the ingredients to be included in the ‘King Size’ food, the respondents, acting within the field in which they were called on to exercise their discretion, warranted that the herring which they would incorporate in the food would not contain poison. The herring meal which killed the mink did contain a poison at a level sufficiently high to be lethal to mink which are animals to which herring meal can properly be fed. Although mink are more sensitive to DMNA than most other animals all animals are sensitive to a greater or less degree to this form of poisoning.

I also agree with the learned judge that the respondents cannot escape by arguing that ‘King Size’ were not goods which it was not in the course of their business to supply. Their business was to make up compounds for animal feeding and they were only using raw materials which they regularly handled; cf Spencer Trading Co Ltd v Devon (Fixol and Stickphast Ltd, Third Parties). In my judgment, the appellants succeed in establishing under s 14(1) first, that a condition of fitness was to be implied between the parties as to the suitability of the herring meal and that this condition was breached and, secondly, that the goods were of a description which it was in the course of the respondents’ business to

supply. So far as s 14(2) is concerned, I agree with the Court of Appeal ([1969] 3 All ER 1496, [1969] 2 Lloyd’s Rep 425) in the construction of the word ‘description’ where it appears and, accordingly, I agree that the appellants fail to prove a breach of the subsection, because they did not deal in goods of that description, namely, the mink food called ‘King Size’ made pursuant to the formula. I would, accordingly, allow the first appeal, that is to say the appeal of the appellants against the respondents, restore the judgment of Milmo J ([1968] 1 Lloyd’s Rep 457) and discharge the order of the Court of Appeal ([1969] 3 All ER 1496, [1969] 2 Lloyd’s Rep 425). Costs will be dealt with after counsel have had a further opportunity of addressing your Lordships on the matter.

I come now to the second appeal, that is to say the appeal of the respondents against the third party, who was exonerated in the Court of Appeal ([1969] 3 All ER 1496, [1969] 2 Lloyd’s Rep 425). The third party, called Norsildmel, is the successor of a Norwegian body being the Export Committee for Herringmeal and Herringoil from whom it took over in 1964. It is not necessary to draw any distinction between these two bodies for the purposes of this case. C T Bowring & Co Ltd, called ‘Bowrings’, were the exclusive selling agents of the third party in the United Kingdom. The contract of sale between the respondents and the third party was made in writing in the English language on the third party’s printed form with typed insertions and is set out in some detail in the judgment of Milmo J ([1968] 1 Lloyd’s Rep 457), but it will be sufficient to refer to a few portions in order to appreciate the issues which arise under s 13 of the Sale of Goods Act 1893. Against the marginal words in block capitals QUANTITY & DESCRIPTION appear the words:

‘about 300/350 … tons at sellers’ option of 2240 lb/1016 kilos of NORWEGIAN HERRING MEAL fair average quality of the season, expected to analyse not less than 70% Protein, not more than 12% Fat and not more than 4% Salt.’

The price clause concluded with a paragraph reading:

‘In the event of any surpluses of fat and/or salt, sellers will make an allowance to buyers at the rate of 1% surplus = 1% of the contract price,

fractions pro rata. If the fat contents exceed 13% or the salt contents exceed 5%, the buyers will have the right of rejection.’

Shipment was to be from Norway during March 1961. There was provision for sampling and analysis and general conditions, of which no 3 reads:

‘The goods to be taken with all faults and defects, damaged or inferior, if any at valuation to be arranged mutually or by arbitration.’

The appellants base their claim against the third party under s 13 solely on a breach of the terms to be implied under s 13 that the goods shall correspond with the description. The contest on description has been whether ‘fair average quality of the season’ is part of the description of the goods or whether, as the third party contends, it is a warranty of quality. From the layout of the document it seems clear that the third party is right on this matter. Looking at the photograph of the original contract and bearing in mind that a term ought not to be regarded as part of the description unless it identifies the goods sold, one sees that the words ‘Norwegian Herring Meal’ appear in the printed form in capital letters and are sufficient to satisfy the marginal requirement of description. The words following, faq as it is called in brief, beginning ‘expected to analyse’ etc, clearly do not form part of the description and cannot therefore be used to embrace, so to speak, the faq phrase and make it part of the description in that way. It is also to be noticed that general condition 3 has nothing to bite on unless faq falls for consideration under this rejection clause dealing with breach of warranty.

Although quality could be used, no doubt, as part of a description it is, I think, not so used in this case; there is a warranty of quality but no more. It is natural so to read it where it may be expected that there will perhaps be divergences in the goods supplied from the samples submitted. The reference to faults and defects in general condition 3 leads to this conclusion. I have used the word ‘sample’, although this is not a case of sale by sample, agreeing with your Lordships that the use of the faq term performs the same function as sale by sample; cf per Devlin J in F E Hookway & Co Ltd v Alfred Isaacs & Sons, and per Sellers J in Steels & Busks Ltd v Bleecker Bik & Co Ltd. I am content to accept the

formulation of the third party accepted by the Court of Appeal ([1969] 3 All ER at 1520, 1521, [1969] 2 Lloyd’s Rep at 466):

‘In essence, it relates, and relates only, to such qualities as are apparent on an ordinary examination or analysis of the goods, such as is usually done in the trade in relation to such goods.’

Before leaving the construction of the contract I should add that I agree with the Court of Appeal that general condition 3 is to be read as purporting to exclude the buyer’s right to reject goods for faults and defects but not as purporting to exclude his right to recover from the sellers compensation for any consequential damage which he may sustain by reason of acceptance of goods which thereafter turn out to be defective and cause loss or damage by reason of that defect. The respondents’ claim against the third party based on s 13 must accordingly fail.

There remains for consideration the claim under s 14(1). This claim stands in rather an unusual position for it depends on a finding of fact by the trial judge ([1968] 1 Lloyd’s Rep 457) in favour of the respondents and reversed by the Court of Appeal ([1969] 3 All ER 1496, [1969] 2 Lloyd’s Rep 425). The Court of Appeal came to the conclusion that in all the circumstances of the case the third party had no reason to contemplate that this consignment of herring meal would be used as food for mink and that it was impossible to draw the inference that the respondents made known to the third party that particular purpose so as to show that they relied on the skill and judgment of the third party. The court held, therefore, that the condition under s 14(1) of the Act was not to be implied and in any event the damage was too remote. A number of documents were put in evidence which show beyond doubt that a serious progressive liver disease had been observed in fur farms. In a treatise by Dr Koppang and Dr Helgebostad published in 1965 or 1966 there is a reference to ‘a disease which has ravaged in several fur farms since 1957. All fur farms afflicted by the liver disease have used herring meal’. In an earlier treatise by Dr Koppang he referred to this disease as having been diagnosed by Bohler in 1957 and stated that in the following years the disease was observed in mink and foxes at more than 70 fur animal farms all over Norway. It is not possible to review in detail the evidence, oral and documentary, which the learned judge considered but for myself I do

not find that I am persuaded by the arguments contained in the judgment of the Court of Appeal ([1969] 3 All ER 1496, [1969] 2 Lloyd’s Rep 425) that the learned judge came to a wrong conclusion of fact. I would accordingly uphold his finding under s 14(1) and allow the appeal of the respondents who are the appellants in the second appeal, ie that to which the third party is respondent; that is to say, I would allow both appeals.

Section 14(2) does not arise. What I have said earlier about costs refers also to the second appeal. LORD GUEST. My Lords, the facts out of which these appeals arise have been fully stated in the courts below ([1968] 1 Lloyd’s Rep 457, on appeal [1969] 3 All ER 1496, [1969] 2 Lloyd’s Rep 425). It is only necessary to outline the essential matters for the purpose of this judgment.

In May 1960, Ashington Piggeries, the appellants in the first appeal, were supplied by Christopher Hill Ltd, the respondents, with a mink food known as ‘King Size’ compounded by the respondents according to a formula supplied by Mr Udall of Ashington Piggeries and agreed between them. It was expressly made known to the respondents that the food was required for mink. The food was duly fed to mink and during July and August 1961 heavy losses occurred to mink which had been fed with ‘King Size’. Although it was contested below, it is now conceded that the losses of mink were due to the presence in herring meal, which was one of the ingredients of ‘King Size’, of a substance called dimethylnitrosamine (DMNA). This was proved to be highly toxic to mink in certain quantities. The herring meal which was compounded into ‘King Size’ to a total of 8 ½ tons was part of a large consignment of 333 ½ tons of Norwegian herring meal supplied to Hill, the appellants in the second appeal, by Norsildmel, a Norwegian firm, the third party respondent in the second appeal. It was conceded that the DMNA present in the herring meal resulted from the treatment of herring with a preservative, sodium nitrite. The herring was subsequently subjected to heat in the process of producing the meal and this was responsible for the DMNA.

The appellants were sued by the respondents for the price of the ‘King Size’ and the appellants counterclaimed for damages in respect of the losses occasioned by the death and injury to the mink. The respondents in

turn sued the third party for indemnity. Milmo J ([1968] 1 Lloyd’s Rep 457) sustained the appellants’ claim against the respondents and found for the respondents in their claim for indemnity against the third party. The Court of Appeal ([1969] 3 All ER 1496, [1969] 2 Lloyd’s Rep 425) unanimously reversed the learned judge and rejected the appellants’ claim and also the respondents’ claim for indemnity.

Appeal of Ashington Piggeries Ltd v Christopher Hill Ltd

The appellants’ case against the respondents was for breach of contract based on ss 13 and 14(1) and (2) of the Sale of Goods Act 1893.

Section 13 of the Sale of Goods Act 1893. Section 13 provides that where goods are sold by description there is an implied warranty that the goods shall correspond with the description. The order by the appellants to the respondents was a verbal order for ‘King Size’ mink food compounded according to a formula. The argument for the appellants was that as the herring meal, which was an ingredient of ‘King Size’, contained DMNA in sufficient quantities to injure mink, it did not correspond with the description of ‘herring meal’. In my view, this argument is not well founded. Herring meal is still herring meal notwithstanding that it may have been contaminated by DMNA. If there was a substantial addition to the commodity described, then it might be that the goods plus this addition would not correspond with the description. Pinnock Brothers v Lewis and Peat Ltd is an example of this type of case, where the goods delivered were an admixture of copra cake and castor beans, the latter being poisonous, and this was held to be a different substance from the copra cake contracted for by description. A similar position arose in Robert A Munro & Co Ltd v Meyer where the meat and bone meal contracted for contained an admixture of meat and bone meal and cocoa husks. It was, accordingly, not of the contract description of meat and bone meal. The quantitative approach was applied. In my view, the fact that the herring meal was contaminated by DMNA did not result in a different substance from the herring meal in the description. There was no loss of identity. In my view, no breach of s 13 by the respondents occurred.

Section 14(1) of the Sale of Goods Act 1893. On this matter I have had

the advantage of reading the speech of my noble and learned friend Lord Wilberforce. I have not found this matter easy, but I am prepared to concur in the result.

Section 14(2) of the Sale of Goods Act 1893. Section 14(2) provides that where goods are bought by description from a seller who deals in goods of that description there is an implied condition that the goods shall be of merchantable quality. There is an admission by the respondents that the goods were not of merchantable quality. So that the only issue which arises is on the first limb of this section.

The argument for the respondents was that as the goods bought were ‘King Size’ mink food and as the respondents had not previously dealt in goods of that contractual description the section did not apply. Such was the approach of the Court of Appeal ([1969] 3 All ER 1496, [1969] 2 Lloyd’s Rep 425). This is a plausible and possible construction of the subsection, but in my view, such a strict construction would lead to absurd results. Suppose a customer goes to a tobacconist’s shop and orders a box of Laranaga cigars in which the tobacconist had not previously dealt. If the cigars were not fit for smoking, there would be no liability on the tobacconist as he had not previously dealt in goods of that particular description, namely, Laranaga cigars. I cannot believe that the section can bear such a restricted meaning. Some support for the view which I have expressed is to be found in observations of my noble and learned friend, Lord Reid, in B S Brown & Son Ltd v Craiks Ltd ([1970] 1 All ER 823 at 825, 826, [1970] 1 WLR 752 at 755):

‘The appellants mainly relied on the contention that, whereas cloth of this description had been commonly used for making dresses, there was no evidence that such cloth had ever been put to any industrial use. There is, I think, some ambiguity in saying that goods are of the same description where the contract description is a precise and detailed specification for their manufacture. One may mean of the same precise and detailed description, and that may be novel; or one may mean of the same general description, and that may be common. In most of the authorities the latter meaning seems to have been adopted.’

Junior counsel for the appellants gave the House an elaborate

examination of the common law before the passing of the Sale of Goods Act 1893. He argued that as the Sale of Goods Act 1893 was a codifying statute, it should in large measure represent the law on the subject before the passing of the Act. As Sir Mackenzie Chalmers put it in the introduction to his first edition of The Sale of Goods Act, ‘The Bill … endeavoured to reproduce as exactly as possible the existing law’, and the changes in the Act were very slight. Junior counsel for the appellants referred to a number of cases in the nineteenth century which he said made it clear that at common law there was no distinction between the word ‘description’ as it subsequently appeared in s 14(1) and (2). The word ‘description’ in s 14(1) clearly had a wide import. The principles, he argued, embodied in these sections applied where goods were supplied by a manufacturer or dealer in the way of his business as opposed to where the seller sold goods in a private capacity. It is true that the distinction can be drawn between Brown v Edgington where the seller of a piece of rope put himself forward as the manufacturer although the rope was manufactured by an independent contractor and was held liable, and Burnby v Bollett where trading was done in an individual capacity and there was no liability for defective goods. These may be but straws in the wind; but there is the classic passage in Jones v Just ((1868) LR 3 QB 197 at 202, 203) of Mellor J, which is supposed to be the basis of the enactment of s 14 of the Sale of Goods Act 1893, which I quote:

‘Fourthly, where a manufacturer or a dealer contracts to supply an article which he manufactures or produces, or in which he deals, to be applied to a particular purpose, so that the buyer necessarily trusts to the judgment or skill of the manufacturer or dealer, there is in that case an implied term or warranty that it shall be reasonably fit for the purpose to which it is to be applied: Brown v. Edgington, Jones v. Bright. In such a case the buyer trusts to the manufacturer or dealer, and relies upon his judgment and not upon his own. Fifthly, where a manufacturer undertakes to supply goods, manufactured by himself, or in which he deals, but which the vendee has not had the opportunity of inspecting, it is an implied term in the contract that he shall supply a merchantable article …’

This case is referred to in the note to s 14(1) in the first edition of Chalmers. If this be the principle lying behind s 14, I see no reason why the scope of the dealer’s business in s 14(2) should be restricted to the

contract description of the goods. If the purpose of the qualifying words ‘deals in goods of that description’ was to confine the section to a dealer in the way of business as opposed to a private capacity then I think a fair interpretation of the words would be ‘who deals in goods of that kind’. If this is the proper interpretation of s 14(2) then the conditions are satisfied because the respondents had dealt before in goods of that kind, namely, animal feeding stuffs. In my view, the respondents are in breach of the implied condition as the goods were not of merchantable quality. Appeal of Christopher Hill Ltd v Norsildmel

The contract for the supply of Norwegian herring meal by the third party to the respondents is dated 14 February 1961. The buyers are the respondents and the sellers Export Committee for Herringmeal and Herringoil, Bergen, Norway. The provisions of the contract which are relevant for consideration are:

‘QUANTITY & DESCRIPTION:

‘About 300/350 (three hundred to three hundred and fifty) tons at sellers’ option of 2240 lb/1016 kilos of NORWEGIAN HERRING MEAL fair average quality of the season, expected to analyse not less than 70% Protein, not more than 12% Fat and not more than 4% Salt …

‘GENERAL CONDITIONS:…

‘3. The goods to be taken with all faults and defects, damaged or inferior, if any at valuation to be arranged mutually or by arbitration.’

Section 13 of the Sale of Goods Act 1893. The primary argument for the respondents was that the whole of the clause opposite ‘Quantity & Description’ was ‘the description’ of the goods within the meaning of s 13, the terms of which have already been quoted. It was said that ‘fair average quality of the season’(faq) must be part of the description because on what has been conveniently described as the ‘sandwich principle’ that part of the clause dealing with expected analysis of the meal was part of the description. It therefore followed that the intervening words faq must also be part of the description. In my view, the fallacy of

this argument lies in the fact that the ‘expected analysis’ is not part of the description. Where goods are unascertained, ‘description’ implies a specification whereby the goods can be identified by the buyer. Such a case was Arcos Ltd v E A Ronaasen & Son where the timber contracted for was precisely specified as to length, breadth and thickness. Neither faq nor the expected analysis provision identifies the goods. They prima facie indicate the quality of the goods (see Pacific Trading Co Ltd v Werner ((1923) 14 Lloyd LR 51 at 54) per Roche J). There is a case where the contract was for goods ‘afloat per S S Morton Bay due London approximately June 8’; these words were held to be part of the description (MacPherson Train & Co Ltd v Howard Ross & Co Ltd). But that is a different case from the present. It enabled the goods to be identified. I do not dispute that there may be cases where a qualitative description of the goods may come within the section. Varley v Whipp is an example of such a case. It concerned the sale of a reaping machine stated to have been new the previous year and to have been used to cut only 50 or 60 acres. This was held to be a sale by description. But in that case the description would have identified the goods as a nearly new machine.

I have reached the conclusion without much difficulty that faq is not part of the description of ‘Norwegian herring meal’ contained in the contract, nor is the expected analysis part of the description. Apart from the side note ‘Quantity & Description’ in the sales contract, I can find no justification whatever for importing faq into the description of the goods. The sidenote by itself cannot control the clause where the rest of the clause is clear and unambiguous. If faq is not part of the description of the goods then it becomes unnecessary to consider the question whether the herring meal was faq and whether, if it was, it covers latent defects. These questions were extensively debated before the House. On the assumption that only the words ‘Norwegian herring meal’ were part of the description then the question whether there was a breach of s 13 is the same as that raised in the principal appeal and I would, accordingly, hold that there was no breach of s 13.

General Condition 3. I agree with the rest of your Lordships in thinking that this clause is no bar to the respondents’ action for indemnity. This was the view of both courts below and I see no reason to differ from them.

Section 14(1) of the Sale of Goods Act 1893. In view of the difficulties attaching to the construction of this clause, I quote it in extenso:

‘Subject to the provisions of this Act and of any statute in that behalf, there is no implied warranty or condition as to the quality or fitness for any particular purpose of goods supplied under a contract of sale, except as follows: -

‘(1) Where the buyer, expressly or by implication, makes known to the seller the particular purpose for which the goods are required, so as to show that the buyer relies on the seller’s skill or judgment, and the goods are of a description which it is in the course of the seller’s business to supply (whether he be the manufacturer or not), there is an implied condition that the goods shall be reasonably fit for such purpose, provided that in the case of a contract for the sale of a specified article under its patent or other trade name, there is no implied condition as to its fitness for any particular purpose …’

The courts below differed as to the application of this section and I have found this the most difficult part of the case.

If I set out the argument for the third party it will focus the issue. Counsel for the third party argued that the purpose which was made known to the seller was the purpose of compounding for animal feeding stuffs and that this was not a particular purpose within the meaning of s 14(1). It was not so particular as to show that the buyer relied on the seller’s skill or judgment. The expressed purpose of compounding for animal feeding stuffs did not give the seller an opportunity of deciding whether he would contract with the buyer. It was further contended that the feeding of herring meal to mink had not been shown to be a normal use of herring meal in Norway or Great Britain. Reference was made to certain passages in the speeches in Henry Kendall & Sons (a firm) v William Lillico & Sons Ltd. If I select one typical passage from the speech of my noble and learned friend, Lord Reid, it must not be thought that I have not had in mind other similar passages from the other judgments. I quote ([1968] 2 All ER at 454, [1969] 2 AC at 80):

‘It was argued that, whenever any purpose is stated so as to bring this subsection into operation, the seller must supply goods reasonably fit to enable the buyer to carry out his purpose in any normal way. That can only be right however, if the purpose is stated with sufficient particularity to enable the seller to exercise his skill or judgment in making or selecting appropriate goods.’

But before I proceed I must refer to another passage in the speech of Lord Reid. After referring to Manchester Liners Ltd v Rea Ltd he said ([1968] 2 All ER at 455, [1969] 2 AC at 81):

‘I do not think that this case is any authority for the view, which has sometimes been expressed, that if the seller knows the purpose for which the buyer wants the goods it will be presumed that the buyer relied on his skill and judgment.’

In Teheran-Europe Co Ltd v S T Belton (Tractors) Ltd ([1968] 2 All ER 886 at 890, [1968] 2 QB 545 at 554) Lord Denning MR said that this passage in Lord Reid’s speech had dealt a ‘knock-out blow’ to the idea that where a particular purpose was made known to the seller there is a presumption that the buyer relies on his skill or judgment. None of the others of their Lordships in Kendall v Lillico referred to this point. In fact Lord Pearce ([1968] 2 All ER at 483, [1969] 2 AC at 115) said that the whole trend of authority has inclined towards an assumption of reliance wherever the seller knows the particular purpose. I do not understand my noble and learned friend, Lord Reid, to be saying that the presumption can never be drawn from the mere fact that a particular purpose is made known to the seller. He emphasises that the question is whether in the whole circumstance the inference can properly be drawn that a reasonable man in the shoes of the seller would realise that he was being relied on.

The whole of s 14(1) so far as relevant must be read together -

‘Where the buyer, expressly or by implication, makes known to the seller the particular purpose for which the goods are required, so as to show that the buyer relies on the seller’s skill or judgment …’

The purpose must be a ‘particular’ purpose. It must be a definite purpose.

In Kendall v Lillico, the purpose of compounding into feeding stuffs for pigs and poultry was held sufficiently particular. (See my noble and learned friend, Lord Morris of Borth-y-Gest ([1968] 2 All ER at 465, [1969] 2 AC at 93): ‘A communicated purpose, if stated with reasonably sufficient precision, will be a particular purpose. It will be the given purpose.’ See also Lord Pearce ([1968] 2 All ER at 482, 483, [1969] 2 AC at 114).

In the present case the purpose was for compounding into animal feeding stuffs which would seem sufficiently definite. It distinguishes it from use as fertiliser. The knowledge of the seller need not be expressly communicated; it may be by implication, as the section provides. If the seller knows the purpose for which the buyer requires the goods, then no express intimation by the buyer is necessary. It will be implied (see Mash & Murrell Ltd v Joseph I Emanuel Ltd ([1961] 1 All ER 485 at 489, [1961] 1 WLR 862 at 866) and Manchester Liners Ltd v Rea Ltd.

The question in the present case therefore resolves itself into this: whether in all the circumstances it is proper to draw the inference that there was reliance by the buyer on the seller’s skill or judgment - in other words whether the particular purpose of the herring meal for compounding into animal feeding stuffs having been made known, the sellers knew that it was likely that it would be fed to mink. Whether the test is ‘likely’, ‘not unlikely’, or ‘liable to’ is a matter of taste, but all these tests are comprised in the speeches in The Heron II. If the proper inference from all the evidence is that the third party knew that herring meal was used as food for mink then, in my view, it is sufficient to show the reliance required by the section. If the particular purpose is shown, then it is an easy step to draw the inference of reliance.

The respondents start off with the undoubted advantage that they have a finding in their favour by the trial judge, Milmo J ([1968] 1 Lloyd’s Rep at 484, 490):

‘Fishmeal, including herring meal, has been used for many years as a food for mink and I am satisfied that it is a perfectly safe and proper food to give mink assuming, of course, it is pure meal, that is to say, has not been contaminated by a deleterious substance and has not been produced

in a manner which results in the presence of a potential toxin.

‘Fishmeal, prior to the introduction of ‘King Size’ in the middle of 1960, was not used to any appreciable extent as a feeding stuff by mink farmers in the United Kingdom, though on the recommendation of Mr. Udall one farmer certainly did use it. On the other hand, I am satisfied that it was used extensively in other parts of the globe and had been used for many years …

‘The argument addressed to me on behalf of the third parties on this point relating to damages was largely, if not entirely, based upon the hypothesis that the feeding of herring meal to mink was not a normal or well-known user of herring meal and further it was a user of which both Mr. Arnesen and Mr. Voldnes at the relevant time were unaware. I have already found that herring meal was at the time a perfectly normal and well-known ingredient of the diet of mink kept in captivity both in Europe, on the American Continent, in Scandinavia and in Norway. I have also found that Mr. Voldnes was prior to 1961 aware that herring meal was being fed to mink in Norway. On the footing that Mr. Arnesen saw at the time the correspondence that passed between Sildemelutvalget and the Norwegian Fur Farmers Marketing Organization and the Norwegian College of Agriculture to which I have already referred, I have found that he also was aware. The real question, however, is whether the sellers, Sildemelutvalget, of which Mr. Arnesen was the assistant director and who are now represented by the third parties, knew of the practice of feeding herring meal to mink and I am satisfied that they must have done.’

The Court of Appeal ([1969] 3 All ER 1496, [1969] 2 Lloyd’s Rep 425), for reasons which they gave, disturbed this finding of fact and held that there was not sufficient evidence to establish that the third party knew before the contract was entered into that herring meal was being fed to mink.

In my view, the Court of Appeal were not entitled to disturb what was essentially a finding of fact by the trial judge. It depended not only on documentary evidence but also on the evidence of witnesses. Milmo J did not accept the evidence of the third party’s two witnesses, Mr Arnesen

and Mr Voldnes, who said they did not know of this fact before 1957. I find that there was sufficient evidence on which the trial judge could make a finding as to the requisite knowledge on the part of the third party. Herring meal is an international commodity dealt with throughout the world as animal feeding stuff. The most significant fact is that from 1957–61 there were recurrent outbreaks of a liver disease in mink in Norway where herring meal was being fed to mink. These were investigated. It was not known then what was the cause of the disease or that it came from herring meal. But the fact that herring meal was being fed to mink must have been known to the third party who was so heavily involved in the sale of that commodity. Mr Voldnes admitted that they knew that from 1957 Norwegian mink farmers were feeding herring meal to mink. It is apparent from a correspondence dated in November 1960 and produced by the third party, that herring meal was being pushed in Norway as a suitable food for mink. Mr Voldnes said there was no reason why herring meal should not be fed to mink. In the Nordic Handbook on Minkuppfödning (Mink Rearing) there occurs this passage:

‘Large quantities of fish meal are produced from herrings, sold usually under the name of herring meal. The herring meal often has a large fat content, more than 6 per cent. By means of a long extraction process it is, however, possible to produce herring meal with a low fat content, similar to that of, for instance, cod meal. In Norway part of the herring meal is used for the feeding of mink. If the fat content is low - 5 per cent and less - one can use a quantity of up to 4 per cent in the mixture.’

In the article of the Fur Trade Journal of Canada ‘Feeding Spring Henry’ it is stated that herring ought to be a valuable food nutritionally for fox and mink. If the third party had knowledge that herring meal was being fed to mink in Norway and elsewhere I see no reason why it was necessary for the respondents to prove use in Great Britain.

Counsel for the third party relied very strongly on Griffiths v Peter Conway Ltd. In that case a lady purchased a Harris tweed coat. After wearing it she developed dermatitis. She made a claim under s 14(1) of the Sale of Goods Act 1895. The evidence revealed that the plaintiff’s skin was abnormally sensitive and that there was nothing in the cloth which would have affected the skin of a normal person. The abnormality

of the plaintiff’s skin was not made known to the retailer. The plaintiff failed on the ground of the abnormality of her skin which no seller would assume to exist. I regard this as a highly special case which has no application to the present. All animals are sensitive to DMNA. Whether it is lethal depends on the animal and the quantity of meal supplied in the food. Mink may be more sensitive than other animals but the tweed coat in Griffiths v Conway would not have harmed a normal person.

Remoteness. I do not desire to add anything to what has been said on this subject.

I would allow the appeal of the appellants against the respondents and the appeal of the respondents against the third party.

VISCOUNT DILHORNE:

My Lords, in 1960 Mr Udall who controlled the appellant companies, was minded to market a food for mink which would constitute part of their daily ration. He got in touch with the respondents who carry on business as compounders of food for animals and who produce animal feeding stuffs. They knew nothing about the nutritional requirements of mink and had not previously produced a food for mink. Mr Udall had bred mink since 1951 and was a well-known mink farmer. Various formulae were considered and the formula finally agreed on between Mr Udall and the respondents included 3 cwt of herring meal in every ton of the food for the mink. Herring meal and all the bulk ingredients of the mink food were in normal use by the respondents in the compounding of animal feeding stuffs and, as Milmo J said ([1968] 1 Lloyd’s Rep at 462),‘commodities which the [respondents] were handling from day to day in the course of their business’. It is clear that Mr Udall did not rely on the respondents to produce a food suitable for mink. He relied on them to produce a food in accordance with the agreed formula and, if they did that, then its suitability for mink was a matter for which he was responsible. The mink food compounded in accordance with the agreed formula was given the name ‘King Size’. Marketing of the food began in May or June 1960. The appellants ordered it from the respondents and it was delivered either to the appellants or to their customers. By the end of the year sales had reached the level of about 25 tons a month and about

100 mink farms were being supplied.

The deaths of mink which gave rise to this litigation did not commence until the end of July 1961. Prior to that date considerable quantities of ‘King Size’ had been supplied and fed to mink. Each batch of ‘King Size’ contained 15 per cent of herring meal and it was not until after Norwegian herring meal began to be used by the respondents that trouble occurred. It was suggested that the fat content of herring meal made it unfit for consumption by mink. Whether the fat content of Norwegian herring differs from that of other herring was not established but it is, in my opinion, an important fact in relation to this case that for many months ‘King Size’ containing herring meal was fed to mink without causing their death or disease of the liver. From the end of July 1961 until the end of 1963 considerable numbers of mink died in farms all over the country. Milmo J was satisfied that ([1968] 1 Lloyd’s Rep at 463)‘there was one disease, and one only, involved and that this disease was not only unknown in this country but no scientific literature was to be found at that time regarding it’. Examination of dead mink did not show any bacterial infection. The only common factor was that the mink that died had been fed with ‘King Size’. Bearing in mind that ‘King Size’ had been fed to mink for many months without any such ill effects, Mr Udall sought to find out whether without his knowledge any of the ingredients of ‘King Size’ had been altered. He learnt that from March 1961 an anti-oxidant ‘Santoquin No 6’ had been used instead of the anti-oxidant prescribed in the formula.

On 7 December 1961, the respondents issued a writ against the appellants, Ashington Piggeries Ltd, claiming £6,693 for the price of goods sold and delivered, and on 9 January 1962, they issued a writ against the appellants Fur Farm Supplies Ltd, claiming £634 3s 4d as the price of goods sold and delivered. The actions were consolidated. By the defence and counterclaim the appellants alleged that the sales of ‘King Size’ were sales by description; alternatively, that they had made known to the respondents the particular purpose for which ‘King Size’ was required so as to show that they relied on the respondent’s skill and judgment and that the mink food was of a description which it was in the course of the respondents’ business to supply; and in the further alternative, that the food was bought by description from the respondents

who at the material times dealt in goods of that description. They thus relied on ss 13 and 14(1) and (2) of the Sale of Goods Act 1893. They alleged breaches of the respondents’ obligations under those sections in that the mink food did not contain the prescribed anti-oxidant but contained ‘Santoquin No 6’. They also alleged deficiencies in vitamins A and E, but their main allegation was in respect of the inclusion of ‘Santoquin No 6’.

The hearing of the action began on 24 June 1965. On the twelfth day of the hearing, in the course of the cross-examination of Dr Pearson, an expert called by the appellants, an extract from a work published in the United States was introduced. This extract referred to a disease in mink of unknown origin causing moderate to high mortality in Norway. The appellants then examined the respondents’‘mix sheets’ which recorded the ingredients used in making each batch of ‘King Size’. They had been disclosed just prior to the hearing and, until the production of this extract, appeared to have little relevance to the issues in the case. The appellants then discovered that the word ‘NORGR’ had been written above the word ‘herring meal’ on the mix sheet for 30 March 1961.

That weekend Dr Pearson went to Norway. He learnt that prior to 1961 and since, scientific research had been going on in Norway into a new liver disease which affected mink and other animals and that it had been found that some herring meal produced in Norway had led to the deaths of ruminants and mink with symptoms closely resembling those found in the dead mink in the United Kingdom. On his return to England, the appellants obtained leave to amend their defence and counterclaim and the hearing was adjourned.

The respondents revealed that Norwegian herring meal was first used in making ‘King Size’ on 20 March 1961 and that it had been used from 20 March until 20 July 1961. In all, 56 tons of ‘King Size’ containing 8 ½ tons of Norwegian herring meal had been compounded. For some years sodium nitrite had been used in Norway for preserving fish. Nitrite so used gradually disappears, but if any is left when heat is applied in the course of making the meal, there can be interaction with the herring and the production of dimethylnitrosamine (hereafter referred to as ‘DMNA’).

In their amended defence and counterclaim the appellants abandoned the allegations of breaches which they had originally made and alleged that there had been breaches of the Sale of Goods Act 1893 by the inclusion in the compounding of ‘King Size’ of herring meal containing DMNA which they alleged was toxic to animals and, in particular, to mink, and which was not a constituent of the agreed formula. That DMNA was the cause of the deaths of the mink in the United Kingdom was strenuously disputed at the trial. Milmo J said that the appellants had satisfied him ([1968] 1 Lloyd’s Rep at 474) -

‘… that the disease which attacked the English field cases was a progressive liver intoxication caused by a single toxic agent. On the balance of probabilities I find that this toxic agent was DMNA, that it was contained in ‘King Size’ and that it was not present in ‘King Size’ prior to mid-March, 1961.’

The Court of Appeal ([1969] 3 All ER 1496, [1969] 2 Lloyd’s Rep 425) agreed with this conclusion and this finding was not challenged in this House. The respondents admitted that the sales of the ‘King Size’ were sales by description. The only question, therefore, to be determined in relation to s 13 of the Sale of Goods Act 1893 is: did the fact that the ‘King Size’ supplied between March and July 1961 included herring meal containing DMNA constitute a breach of the implied condition that the goods supplied would correspond with the description? Milmo J found that ‘King Size’ which contained DMNA in quantities which rendered it toxic to mink, did not comply with the description contained in Mr Udall’s formula, and that it was goods so described that the respondents had undertaken to manufacture, sell and deliver. The Court of Appeal ([1969] 3 All ER 1496, [1969] 2 Lloyd’s Rep 425) disagreed. They held that the appellants had failed to show that the goods delivered did not correspond with the contractual description. They came to the conclusion that the 8 ½ tons or so of herring meal contaminated with DMNA used for compounding ‘King Size’ was toxic to mink but ([1969] 3 All ER at 1509, [1969] 2 Lloyd’s Rep at 456)‘was not so contaminated as to make it toxic to any other kind of animal, whether the herring meal was fed directly or as a part of a compound foodstuff’. They also said that there was ([1969] 3 All ER at 1511, [1969] 2 Lloyd’s Rep at 458)‘no justification in the evidence for regarding the presence of D.M.N.A. as an

addition to, rather than a condition of, herring meal’ and they cited the following passage from Dr Pearson’s evidence ([1969] 3 All ER at 1511, [1969] 2 Lloyd’s Rep at 458):

‘… there is no external extraneous substance which has been added to the herring meal; it is just something in the herring meal itself which is wrong …’

It has been held that where a substance has been added, eg castor seed to copra cake (Pinnock Brothers v Lewis and Peat Ltd, British Oil and Cake Co Ltd v Burstall & Co Ltd and cocoa husks to meat and bone meal (Robert A Munro & Co Ltd v Meyer), the goods delivered did not comply with the description but it has not been decided that a failure to comply with the description can only be established on proof of the addition of a substance. In my opinion, failure to comply may be brought about by a variety of causes. What has to be established is not that there is a particular cause but that the goods do not comply with the description. The addition of a preservative could by interaction with the meal and the application of heat cause the formation of a substance quite as deleterious as the addition of castor beans to copra or cocoa husks to meat and bone meal and could lead to the product delivered not complying with the description of the goods ordered.

In this case the Court of Appeal ([1969] 3 All ER 1496, [1969] 2 Lloyd’s Rep 425) appear to me to have decided that the goods did comply with the description, mainly on account of their conclusion that the meal was not harmful to other animals than mink. They based this conclusion on the fact that the 8 ½ tons formed part of a shipment of 333 ½ tons by the third party to the respondents. While it may well be that not all the bags in that shipment and not all the bags used for compounding ‘King Size’ were contaminated, it is to the highest degree improbable that only the contaminated bags were used for making food for mink. The probability is that the balance of the 333 ½ tons was contaminated to a like extent as the 8 ½ tons. That balance was used for feeding animals but there was no evidence that any other animals fed had suffered any ill effects. If the case rested there, then the conclusion that the meal containing DMNA was only toxic to mink would be warranted.

It was not suggested in the pleadings by the respondents that mink had special idiosyncrasies which distinguished them from other animals in relation to DMNA, nor, I understand, was any evidence to that effect given at the trial. That mink were more sensitive to DMNA than other animals was said, but not that DMNA was harmful only to mink. Dr Roe gave evidence about experiments he had conducted using very small quantities of DMNA. He had received it as a liquid and he had instructed his assistant to keep the room in which the experiments were conducted well ventilated with the windows open and to wear gloves for, he said,‘this material is particularly hazardous to man in concentrated form’. Dr Koppang, an expert called by the third party, said that all animals were sensitive to DMNA poisoning but that the sensitivity varied from species to species.

In December 1962, Dr Koppang had written a booklet ‘An Outbreak of Toxic Liver Injury in Ruminants’ which was published by the Department of Pathology, Veterinary College of Norway. It began with the following paragraph:

‘In 1961, cases of a pernicious liver disease with a distinct clinical picture and characteristic pathological lesions began to appear in cattle and sheep. Several animals in the same stock were affected and many died. The disease had not previously been observed in Norway, nor have we seen it reported in the literature.’

He said that the first cases occurred in February 1961, in sheep, and that all the animals affected had been fed with herring meal. He had conducted a number of experiments and wrote:

‘The feeding experiments have borne out what has been observed in practice, namely that some herring meal may be toxic. There are close to 100 herring meal factories in Norway, but sacks with toxic meal have practically only been manufactured by one factory in Northern Norway.’

Later another booklet written by him was published by the Veterinary College of Norway, entitled ‘Toxic Hepatosis in Fur Animals’. This said, among other things, that

‘… it was decided that it was after all necessary to determine if the herring meal which was found to be toxic for ruminants, could also cause the severe progressive liver disease in fur animals.’

One of the conclusions he reached was:

‘The severe progressive liver disease in fur animals and the toxic hepatosis in ruminants are diseases which are both caused by toxic herring meal.’

He also wrote that:

‘The feeding experiments on mink, blue foxes and one silver fox with herring meal which had proved toxic to sheep, resulted in the production of pathological changes similar to those found in severe progressive liver disease, a disease which has ravaged in several fur farms since 1957. All fur farms afflicted by the liver disease have used herring meal … The conclusions drawn from the investigations from the beginning of the fifties have given the laboratories and manufacturers a false feeling of security, assuming that the preservation of the raw material with nitrite could not cause poisoning. The danger of spoilage to large quantities of raw material has led certain manufacturers to use nitrite in amounts which lie far above the regulation limits. The formation of unsaturated fatty acids in the fish oil were reduced and thereby a better price could be attained.’

In the light of this scientific evidence the conclusion that the herring meal used by the respondents for the making of ‘king Size’ was not toxic to any other kind of animal was not, in my opinion, warranted. I regard it as contrary to the balance of probabilities that herring meal, contaminated to such a degree as to cause the deaths of many mink even when it formed only a small proportion of their food, was not also harmful to other animals. The fact that at the trial no evidence was adduced that other animals had died or suffered in consequence of consuming some part of the balance of the 333 ½ tons, when the deaths of mink occurred in 1961 and herring meal was not suspected until 1965 is, in my opinion, wholly insufficient to counter the effect of the scientific evidence.

If, as a result of the consumption of herring meal contaminated by DMNA supplied by the respondents, other animals died or were made ill in 1961, it may well be that the deaths and illness were not attributed to the herring meal. It was not until long after the deaths of the mink that that was alleged to be the cause. However that may be, bearing in mind that there was no issue at the trial or raised in the pleadings as to such meal being only toxic to mink, I think it is clear that Milmo J when he said ([1968] 1 Lloyd’s Rep at 480) that Mr Udall was relying on the respondents ‘… to obtain the ingredients, to see they were of good quality and not to use ingredients which, as a result of contamination, were toxic’ he meant toxic to all animals to which the meal would normally be fed.

In Chalmers Sale of Goods Act 1893 the author, who drafted the Act, cites the following passage from the judgment of Lord Blackburn in Bowes & Co v Shand & Co ([1877] 2 App Cas 455 at 480, [1874–80] All ER Rep 174 at 185): ‘If the description of the article tendered is different in any respect it is not the article bargained for, and the other party is not bound to take it.’ In Pinnock Brothers v Lewis and Peat Ltd it was only after the cake had been fed to animals and they had been made ill that it was analysed and found to contain castor beans in so large a proportion as to make it poisonous. Roche J held that there was a failure of the goods to comply with the description.

‘Herring meal does not normally contain a poison’, said Milmo J ([1968] 1 Lloyd’s Rep at 481). Did the presence of DMNA merely affect the quality of the herring meal or did it make a difference in kind? If the former, then there was no failure to deliver in accordance with the description. If the latter, there was. In view of the fact that herring meal is not normally poisonous to animals, I think that, as in the Pinnock case, there was a difference in kind. Whether such a difference is brought about by the admixture of other substances or by the effect of manufacture when a particular preservative has been used, seems to me immaterial. True it is that the presence of DMNA could not have been detected on a visual examination of the meal and that the presence of castor beans in the copra cake was only discovered on analysis, but the fact that the adulteration or contamination is not discoverable on inspection does not, in my opinion, prevent a buyer from establishing that goods bought by description do not comply with the description. The line between a

difference in quality and a difference in kind may in many instances be difficult to draw. Here, where the distinction is between poisonous and non-poisonous herring meal, there was, in my opinion, more than a difference in quality, and I agree with Milmo J in thinking that there was difference in kind and so a breach of s 13.

I also think that there were breaches of s 14(1) and (2). The appellants made known to the respondents the particular purpose for which ‘King Size’ was required, namely, as a food for mink. They did not, however, rely on the respondents’ skill and judgment to provide food suitable for mink. They made known the purpose so as to rely on the respondents’ skill and judgment in seeing that the ingredients used were of good quality. It was in the course of their business to supply herring meal. There was consequently an implied condition that the herring meal would be reasonably fit for use as a feeding stuff for animals. I agree with Milmo J that the meal containing DMNA was not reasonably fit for that purpose.

The Court of Appeal ([1969] 3 All ER at 1516, [1969] 2 Lloyd’s Rep at 462) came to a different conclusion, as they held - in my opinion, as I have said, erroneously - that the herring meal was ‘perfectly suitable as a feeding stuff for all animals for which the [respondents] normally compounded feeding stuffs, but was toxic to mink alone’. Presumably but for this conclusion, if they had held that the meal was toxic to other animals, they would have held that there had been a breach of s 14(1).

Section 14(2) applies when goods are bought by description from a seller who deals in goods of that description. It was not disputed that the goods were bought by description. Did the respondents deal in goods of that description, ie of that kind? They had not made food for mink before but they dealt in all the ingredients which when compounded were labelled ‘King Size’, and they dealt in herring meal in large quantities. Consequently, in my opinion, the case comes within s 14(2) and there was an implied condition that the goods should be of merchantable quality. It was conceded by the respondents that they were not. For these reasons in my opinion the appeal by the appellants succeeds.

I now turn to the respondents’ claim against the third party. On 14

February 1961, the respondents entered into a contract with Sildemelutvalget, the Export Committee for Herringmeal and Herringoil, to whom the third party is the successor, through C T Bowring & Co of Leadenhall Street, for the purchase of herring meal. The contract contained the following paragraph:

‘QUANTITY & DESCRIPTION. About 300/350 (three hundred to three hundred and fifty) tons at sellers’ option of 2240 lb/1016 kilos of NORWEGIAN HERRING MEAL fair average quality of the season, expected to analyse not less than 70% Protein, not more than 12% Fat and not more than 4% Salt.’

It contained a provision for the reduction of price if the fat or salt content exceeded the expected proportion, and gave the respondents a right of rejection if the fat content exceeded 13 per cent or the salt content 5 per cent.

The sale was thus of goods by description. There was considerable controversy as to what was the description, the respondents contending that it included the words ‘fair average quality of the season’; the third party that it did not. Where a sale is by description, the description identifies the goods. In my opinion, the words ‘fair average quality of the season’ do not do so. They do not assist in the identification of the goods and merely relate to the quality of the herring meal. I do not think that the fact that this paragraph of the contract has the words ‘QUANTITY & DESCRIPTION’ beside it suffices to justify the conclusion that the words were intended to be part of the description of the goods, though I appreciate that there may be cases where reference to quality may be part of the description identifying the goods the subject of the sale. In my opinion, the description of the goods the subject of the sale was Norwegian herring meal, and nothing more. The expectation that on analysis it would not have less than 70 per cent protein or more than 12 per cent fat and 4 per cent salt cannot be part of the description identifying the goods.

The respondents alleged that there was a breach of s 13 of the Sale of Goods Act 1893 by the third party. Whether or not there was depends on whether the meal supplied could properly be described as Norwegian

herring meal. Norwegian herring meal does not normally contain a poison. The meal delivered contained DMNA in sufficient quantities to kill mink and, as I have said, in my opinion to be harmful to other animals. The same question arises for decision in relation to the respondents claim under s 13 as arose on the appellants’ claim against the respondents. For the reasons I have already stated, and which I need not repeat, in my opinion the difference between Norwegian herring meal, which is normally harmless to animals, and Norwegian herring meal containing DMNA in sufficient quantities as to be harmful to animals, is not just a difference of quality but one of kind and I would, therefore, find in favour of the respondents on this issue.

The respondents also alleged that there was a breach by the third party of its obligations under s 14(1) of the Act. In relation to this claim the first question to be considered is: did the respondents, expressly or by implication, make known to the third party the particular purpose for which the herring meal was required so as to show that they relied on the third party’s skill and judgment?

There are two main uses for herring meal, as a food for animals and as a fertiliser. In this case the quality and price stated in the contract indicated that it was required for feeding animals. I think that the purpose for which the meal was required was made known to the third party so as to show that the respondents relied on their skill and judgment, and also that it was ‘the particular purpose’ within the meaning of those words in the Act. I regard it as almost unarguable that a person who goes into a shop and asks for a food for feeding to animals has not made known the particular purpose for which he is requiring the food and that he has only made known the particular purpose if he specifies the variety or varieties of animals he wants to feed.

The Court of Appeal ([1969] 3 All ER 1496, [1969] 2 Lloyd’s Rep 425) rightly said that for the respondents to succeed under s 14(1) they had to show that the third party should reasonably have contemplated when the contract was made that mink was a type of animal to which it was not unlikely that herring meal would be fed; in other words, should the third party have realised, when it was made known to it that the meal was wanted to feed to animals, that one kind of animal to which it might be

given was mink.

The third party called two witnesses, one an assistant director of theirs since 1960 and the other their chairman from 1940 to 1963. The assistant director said that they were not aware that herring meal was fed to mink until late in 1962 and the chairman said that he had always seen to it that herring meal should not be sold as mink food. It was, however, admitted by the third party that herring meal had in fact been fed in Norway to mink since 1957. This admission was based on the statements in Dr Koppang’s booklets to which I have referred, namely, that the first case of the disease had been diagnosed in 1957 and ‘In the following years the disease was observed in mink and foxes at more than 70 fur animal farms all over Norway’ and that ‘All fur farms afflicted by the liver disease have used herring meal’.

In October and November 1960, there were conferences between Sildemelutvalget and the Norwegian Fur Farmers Marketing Association and the Institute of Poultry and Fur Bearing Animals with a view to securing the sale of herring meal for consumption by mink in Norway. Milmo J said ([1968] 1 Lloyd’s Rep at 484) that he was unable to believe that in the course of these conferences Sildemelutvalget ‘… did not learn, if they did not already know, that herring meal was being fed to mink by Norwegian farmers …’. He found that the two witnesses to whom I have referred were aware of this, and he was satisfied that Sildemelutvalget must have known of this practice. The Court of Appeal ([1969] 3 All ER at 1526, [1969] 2 Lloyd’s Rep at 475) rejected his conclusions and held that the respondents:

‘… have failed to establish that, at the date of the contract, the third party should reasonably have contemplated that it was not unlikely that the herring meal, the subject-matter of this contract, or part of it, might be fed to mink. On the contrary, we think on the evidence that the result of such contemplation would have been that it was highly unlikely that the herring meal would be fed to mink, to which alone it would be harmful.’

I have already dealt with the conclusion that the meal was harmful only to mink and, while I accept the validity of the criticisms made by the Court of Appeal ([1969] 3 All ER 1496, [1969] 2 Lloyd’s Rep 425) of some of

the reasons advanced by Milmo J, nevertheless bearing in mind the information provided by Dr Koppang and the fact that Milmo J had the advantage of seeing the two witnesses in the witness box, I do not think that those criticisms sufficed to justify the rejection of his conclusions and to entitle the Court of Appeal to substitute a finding of their own. Milmo J held ([1968] 1 Lloyd’s Rep at 485) that the feeding of herring meal to mink ‘in and prior to 1961 was … an ordinary and reasonable user of that commodity’. If Norwegian herring meal was fed to mink in Norway and the third party was aware of this, then the third party should have contemplated that its use for food for mink in the United Kingdom was not unlikely.

In my view, the answer to the question posed by the Court of Appeal ([1969] 3 All ER 1496, [1969] 2 Lloyd’s Rep 425) is in the affirmative. The third party in the circumstances should have realised that if the purpose of the purchase was to feed the meal to animals, it might be fed to mink. It was in the course of their business to supply herring meal and thus, by virtue of s 14(1), there was an implied condition that the herring meal would be reasonably fit for use as food for animals including mink. The meal was not reasonably fit for such use as it contained DMNA and was poisonous and so, in my opinion, the respondents succeed on their claim under s 14(1) against the third party.

The third party sought to rely on condition 3 of the general conditions of the contract, which was in the following terms:

‘3. The goods to be taken with all faults and defects, damaged or inferior, if any, at valuation to be arranged mutually or by arbitration.’

I agree with the Court of Appeal ([1969] 3 All ER 1496, [1969] 2 Lloyd’s Rep 425) that this clause does not exclude their liability for damages for breach of the implied condition that the meal should be reasonably fit for use as food for mink and other animals.

For these reasons in my opinion the respondents’ appeal against the third party succeeds.

LORD WILBERFORCE:

My Lords, what caused the death of the appellants’ mink in 1961? - this was the substantial, and very difficult, issue at the trial. The appellants succeeded in proving after some 50 days that the heavy losses which occurred had been caused by the presence of dimethylnitrosamine (DMNA) in herring meal supplied to them by the respondents. This herring meal was an ingredient in a compound mink food (‘King Size’) ordered, on the appellants’ behalf, by their controlling director Mr W T Udall, a leading mink farmer and an expert in mink nutrition. The judge’s finding ([1968] 1 Lloyd’s Rep 457) as to the cause of the mortality was upheld by the Court of Appeal ([1969] 3 All ER 1496, [1969] 2 Lloyd’s Rep 425) and has not been challenged in this House. We are only concerned with the appellants’ rights under their contract of sale and under the Sale of Goods Act 1893, and consequentially with the respondents’ rights against third parties from whom in turn the respondents acquired the meal. It is not, and cannot be, contended that because the presence of this chemical in the meal was unsuspected, and latent, at the date of the contract, and for some time after, that of itself affords a defence (other than a special defence under the fair average quality provisions) either to the intermediate sellers or to the manufacturers.

The judge decided that the respondents were in breach of each of the conditions implied by ss 13 and 14(1) and (2) of the Act but on each point his decision was reversed by the Court of Appeal ([1969] 3 All ER 1496, [1969] 2 Lloyd’s Rep 425). I have no doubt that under two of these headings his judgment should be restored. Because of the way in which the Sale of Goods Act 1893 has slotted the pre-existent common law remedy into compartments, it is necessary to consider separately the three relevant provisions. It is well known that there is a good deal of overlapping between them, so that this subdivision is artificial and gives rise to difficulty. But there is no avoiding this procedure.

1. Section 13 of the Act. The question is whether the compound mink food sold by the respondents (under the name ‘King Size’) corresponded with the description. The appellants’ case was that the food was to be made up according to a formula which identified generically the ingredients and specifically the chemical additives, quantifying precisely

the proportions of each ingredient. One of these ingredients was herring meal. The food delivered in certain relevant months, it was claimed, did not correspond with the description because it contained a significant quantity of DMNA. The proposition is that ‘King Size’ made partly of herring meal which contains DMNA does not correspond with the description ‘King Size’. This can be reduced to the proposition that the herring meal ingredient did not correspond with the description because it contained DMNA. The analogy was invoked, inevitably, by the appellants of copra cake with castor seed; the respondents invoked that of oxidised iron. The learned judge accepted the former, the Court of Appeal ([1969] 3 All ER 1496, [1969] 2 Lloyd’s Rep 425) the latter. Whether in a given case a substance in or on which there has been produced by chemical interaction some additional substance can properly be described or, if one prefers the word, identified, as the original substance qualified by the addition of a past participle such as contaminated or oxidised, or as the original substance plus, or intermixed with, an additional substance, may, if pressed to analysis, be a question of an Aristotelian character. Where does a substance with a quality pass into an aggregate of substances? I do not think that it can be solved by asking whether the chemical interaction came about by some natural or normal process, eg preservation by the addition of salt (sodium chloride), or by some alien intrusion by the production of DMNA from sodium nitrite through a heating effect. I cannot see any distinction in principle in this difference. Further I do not believe that the Sale of Goods Act 1893 was designed to provoke metaphysical discussions as to the nature of what is delivered, in comparison with what is sold. The test of description, at least where commodities are concerned, is intended to be a broader, more commonsense, test of a mercantile character. The question whether that is what the buyer bargained for has to be answered according to such tests as men in the market would apply, leaving more delicate questions of condition, or quality, to be determined under other clauses of the contract or sections of the Act. Perhaps this is to admit an element of impression into the decision, but I think it is more than impression which leads me to prefer the answer, if not all of the reasoning, of the Court of Appeal ([1969] 3 All ER 1496, [1969] 2 Lloyd’s Rep 425) that the defect in the meal was a matter of quality or condition rather than of description. I think that buyers and sellers and arbitrators in the market, asked what this was, could only have said that the relevant ingredient was herring meal

and, therefore, that there was no failure to correspond with description. In my opinion, the appellants do not succeed under s 13.

2. Section 14(1) of the Act. I do not think it is disputed, or in any case disputable, that a particular purpose was made known by the buyers so as to show that they relied on the sellers’ skill and judgment. The particular purpose for which ‘King Size’ was required was as food for mink. Equally I think it is clear (as both courts have found) that there was reliance on the respondents’ skill and judgment. Although the Act makes no reference to partial reliance, it was settled, well before Cammell Laird & Co Ltd v Manganese Bronze and Brass Co Ltd was decided in this House, that there may be cases where the buyer relies on his own skill or judgment for some purposes and on that of the seller for others. This House gave to that principle emphatic endorsement. The present is certainly such a case. In the words of Milmo J ([1968] 1 Lloyd’s Rep at 480):

‘On the one hand Mr. Udall was relying on his own judgment as to what his formula should contain and the levels at which the various ingredients in it should be included. On the other, he was relying, and had no alternative but to rely, upon the [respondents] to obtain the ingredients, to see they were of good quality and not to use ingredients which, as a result of contamination, were toxic.’

The word ‘toxic’ will require some examination but, subject to this, I consider that this passage correctly states the position as regards reliance.

The field thus left to the respondents can be described in terms of their responsibility as merchants, to obtain and deliver ingredients, and relevantly herring meal, not unfit by reason of contamination, to be fed to animals, including mink. The field reserved to the appellants, on the other hand, was that of particular or specific suitability for mink. There was no doubt that herring meal, as such, was suitable for mink; on the other hand, the particular consignments supplied in 1961 were unsuitable because of the presence of DMNA. What, then, was the nature of this unsuitability? If mink possessed an idiosyncrasy, which made the food as supplied unsuitable for them though it was perfectly suitable for other animals, this would be the buyers’ responsibility, unless,, as is not the case here, they

had made this idiosyncrasy known to the sellers so as to show reliance on them to provide for it. But any general unsuitability would be the sellers’ responsibility. Although the evidence was not very complete, it is sufficiently shown, in my opinion, that mink are more sensitive to DMNA than most other animals to whom compound foods would be sold. Chickens and pigs are among the least sensitive, next cattle and then sheep, with mink at the top of the scale. So the question arises, what does the buyer, alleging unfitness, have to prove? If the fact were that the herring meal supplied, while damaging to mink, was perfectly harmless to all other animals to whom it might be fed, even perhaps perfectly harmless below a certain level of DMNA concentration, it would be unjust to hold the sellers liable. If, on the other hand, the herring meal was not only lethal to mink but also deleterious, though not lethal, to other animals, the sellers’ responsibility could be fairly engaged. A man can hardly claim that the product he sells is suitable, especially if that is a foodstuff, merely because it fails to kill more than one species to which it is fed. In this case, because of the difficulty of tracing the lethal element, the evidence as to its presence, its strength and its effect was not scientifically complete. It was not until 1964 that DMNA was identified. By that time all the infected herring meal had been disposed of, and all other animals to which it had been fed had died. The critical question in this part of the appeal is whether the appellants proved enough to show that their mink died because of some general, ie non-specific, unsuitability of the herring meal through contamination. The burden was on the appellants to show that this was so.

The Court of Appeal ([1969] 3 All ER 1496, [1969] 2 Lloyd’s Rep 425), who decided against the appellants on this point, based their decision on a conclusion regarding the balance of the contaminated herring meal which was not used for mink food. The consignment which killed the appellants’ mink was part (8 ½ tons) of a total of 333 ½ tons, the rest of which was sold by the respondents for inclusion in feeding stuffs in the normal way. The Court of Appeal ([1969] 3 All ER 1496, [1969] 2 Lloyd’s Rep 425) found that this balance was ‘perfectly suitable’ as a feeding stuff for animals for whom the respondents normally compounded foods and from this drew the conclusion that the deaths of the mink were due to some specific idiosyncrasy. I cannot accept that this conclusion was justified. The evidence certainly showed that no

complaints were received from any person who received meal from the balance of the consignment, but that was all. There was no evidence in what quantities, or over what period, any of this meal was fed,nor, even accepting that no deaths resulted (and premature deaths may have occurred) was there any evidence that the animals in question were not adversely affected in weight, fertility or in damage to their livers. The absence of complaint is insufficient by itself to establish perfect suitability. But the matter does not end with rejection of the Court of Appeal’s ([1969] 3 All ER 1496, [1969] 2 Lloyd’s Rep 425) finding; the basic difficulty remains. Given that the appellants had to show general unsuitability and not merely specific unsuitability for mink, did they do so? It is here that the concept of toxicity becomes relevant.

Toxicity is, to some extent, a relative quality. There are few products which are lethal or even deleterious to all species, in all conditions, in whatever doses. Some ‘poisons’ may be quite harmless to certain species if they do not exceed a threshold quantity and if they can be eliminated before a fresh dose is taken; some may even be beneficial if taken in small doses but lethal if taken in large. Other products, though not immediately damaging, become cumulatively so through build-up in the tissues or cells. From this point of view the Court of Appeal ([1969] 3 All ER 1496, [1969] 2 Lloyd’s Rep 425) was no doubt right in its reservations as to the use of the word ‘toxic’ where quoted above: the word may involve a petitio principii. But when this is said, it also remains true that, in certain contexts, toxicity may be an absolute quality; particularly is this so where foodstuffs are concerned. Where an element in feeding stuffs is shown to be (i) lethal in some quantities to one or more species (ii) damaging in other quantities to one or more species and in more than one respect and (iii) when it is not suggested that in any circumstances the chemical is beneficial; when moreover the expert evidence shows that the full implication and effects of feeding it have yet to be scientifically established, then there is every justification for describing it as toxic, and which is the relevant consideration, for placing responsibility for its exclusion firmly on the seller. I am satisfied that DMNA was shown to be toxic in this sense. That, in a general sense of the word, it was toxic was never disputed at the trial. The issue, fought over so many days, was whether it was shown that DMNA was present in the 8 ½ tons used for making food for the appellants’ mink, and whether

it was DMNA that caused their death; secondarily also whether it was shown to be present in the rest of the 333 ½ tons consignment or in the product of the season 1960–61.

It was not an issue, on the pleading, or as I understand it, in evidence, whether DMNA was toxic generally or whether the disputed herring meal was toxic only quoad the mink. The description of DMNA as toxic was that of Dr Koppang, the expert witness called for the third parties - the effective antagonist of the appellants. It was he who in the witness box said that all animals are sensitive to DMNA and that mink were more sensitive than others. There was evidence of the specific damage inflicted by DMNA, namely, damage to the liver; not only mink have livers, and damaged livers of other species were instanced and photographed; this is generic damage, not idiosyncratic. There was evidence of disastrous losses to Norwegian fox and mink over six years from 1957 with similar symptoms to those of a toxic hepatosis in 1961 among ruminants to whom toxic herring meal had been fed. Dr Roe, a pathologist, showed that DMNA was particularly hazardous to man in concentrated form and that he had instructed persons carrying out examinations of poisoned mink to be extremely careful. My noble and learned friend, Viscount Dilhorne, has fully extracted the essence of this evidence.

Against this the respondents sought to rely on certain passages in the evidence to the effect that as regards other animals than mink, including pigs, chickens and cows, DMNA below a certain quantity is harmless. But such evidence would have to be of a very convincing character before it satisfied me (as it clearly did not satisfy the judge) that foodstuffs containing DMNA were suitable for their purpose, even it the concentration was low. In fact, the evidence was of a very imprecise kind. It was agreed that one species differs from another, one sub-species from another, one individual from another. As regards sensitivity to DMNA the evidence as regards the effect of feeding it was partial and far from comprehensive. The Norwegian expert admitted that scientific knowledge was imperfect. The serious ravages among ruminants and furbearers had taken place seven years or more before the trial, the opportunity for accurate research in the field did not exist. The equation is, therefore, this: that DMNA is inherently and generally toxic; that as included in the relevant herring meal it poisoned the appellants’ mink; that this poisoning

was not due to any specific idiosyncrasy among mink; that its effects on other species or sub-species is not accurately known beyond that it is potentially deleterious at least to the liver and that most normal species are more tolerant of it than mink.

In my opinion, the appellants made good their case. They proved the cause of their losses to lie in the inclusion of a generally (ie non-specific as regards mink) toxic ingredient in the food. It was not for them to show that this same food killed, or poisoned, other species. So to require would place far too high a burden on a buyer. The buyer may have no means of ascertaining what the effect on other species may be. The whole of the contaminated consignment may have been fed to the buyer’s animals. Is the buyer to fail because he cannot show that this particular consignment killed, or at least injured, other animals? He must, I think, carry his proof to the point of showing that the guilty ingredient has some generally (as opposed to specifically) toxic quality. But once he has done this, has he not shown, at least with strong prima facie force, that a feeding stuff which contained it was unsuitable? Is he not entitled to throw on to the seller the burden of showing, if he can, that the damage to the buyer’s animals was due to some factor within the field of responsibility reserved to the buyer? I would answer yes to these questions. In the end, it is for the judge to decide whether, on the evidence, the buyers have proved their case. Milmo J’s conclusions are expressed in three passages, one in the main action, the others in the third party proceedings (the whole case was heard together ([1968] 1 Lloyd’s Rep at 481, 487, 486)):

‘Herring meal does not normally contain a poison. The herring meal which killed the English mink contained DMNA which is a poison, and it contained it at a level sufficiently high to be lethal to mink, which are animals to which herring meal can properly be fed. All animals are sensitive to DMNA poisoning, though mink are more sensitive than most …

‘I find that the meal which poisoned the English mink was not reasonably fit for use as an ingredient in animal foodstuffs because of the fact that it contained in substantial and significant quantities DMNA which is a toxic substance to which all animals are sensitive …

‘While I accept that there was no evidence that the meal had a deleterious effect upon any animal or other type of livestock other than mink, I do not consider that it was proved affirmatively that the meal which killed the mink could have been fed with impunity to all other types of livestock.’

This is precisely the position. Coupled with the general finding as to toxicity (something to which all animals are sensitive, ie liable to suffer liver damage) it amounts to a rejection of the only line of defence open to the respondents, ie that the relevant consignment was fit to be fed to all normal animals and only unfit to be fed to mink. In my opinion, these findings were justified and correct.

So much for the facts, but there remains one legal argument on this part of the case. Section 14(1) contains the words ‘and the goods are of a description which it is in the course of the seller’s business to supply’. The respondents relied on these words and persuaded the Court of Appeal ([1969] 3 All ER 1496, [1969] 2 Lloyd’s Rep 425) to decide that the requirement was not satisfied because, briefly, the respondents were not dealers in mink food. A similar argument was put forward on the words in s 14(2)‘where goods are bought by description from a seller who deals in goods of that description’. The Court of Appeal ([1969] 3 All ER 1496, [1969] 2 Lloyd’s Rep 425) decided this point, too, in the respondents’ favour. The respondents, they held, did not deal in mink food, or ‘King Size’, before Mr Udall placed with them the orders which produced the defective goods. I have some doubt whether this argument is even correct on the facts, because Mr Udall had been ordering ‘King Size’ for several months before he ordered the fatal consignment. But we must deal with the legal argument because it is clearly of general importance. It appears never previously to have been accepted and it substantially narrows the scope of both subsections. It rests, in the first place, on a linguistic comparison of the meaning of the word ‘description’ in the three places where it appears and on the argument that it must mean the same in each place.

I do not accept that, taken in its most linguistic strictness, either subsection bears the meaning contended for. I would hold that (as to sub-s (1)) it is in the course of the seller’s business to supply goods if he

agrees, either generally, or in a particular case, to supply the goods when ordered, and (as to sub-s (2)) that a seller deals in goods of that description if his business is such that he is willing to accept orders for them. I cannot comprehend the rationale of holding that the subsections do not apply if the seller is dealing in the particular goods for the first time or the sense of distinguishing between the first and the second order for the goods or for goods of the description. The Court of Appeal ([1969] 3 All ER 1496, [1969] 2 Lloyd’s Rep 425) offered the analogy of a doctor sending a novel prescription to a pharmacist, which turns out to be deleterious. But as often happens to arguments of this kind, the analogy is faulty; if the prescription is wrong, of course the doctor is responsible. The fitness of the prescription is within his field of responsibility. The relevant question is whether the pharmacist is responsible for the purity of his ingredients and one does not see why not. But, moreover, consideration of the preceding common law shows that what the Act had in mind was something quite simple and rational: to limit the implied conditions of fitness or quality to persons in the way of business, as distinct from private persons. Whether this should be the law was a problem which had emerged, and been resolved, well before 1893. The first indication of the point arose in Jones v Bright (copper sheathing). Two of the judges regarded it as an essential allegation that the defendant should have been the manufacturer of the defective copper. Park J in fact used the words ((1829) 5 Bing at 546)‘distinguishing, as I do, between the manufacturer of an article and the mere seller’.

In Brown v Edgington ((1841) 2 Man & G 279 at 291)(the crane rope) we find a description of the defendant by Bosanquet J as ‘a dealer in articles of that description’, clearly a reason for holding him liable though he was not the manufacturer. The distinction between the dealer and the private seller is clearly brought out in Burnby v Bollett where a man bought a carcase in the market but later sold it to another farmer. His exemption from liability for defects in the carcase was explicitly based on his private character; he was ((1847) 16 M & W at 649)‘not clothed with any character of general dealer in provisions’, he was ((1847) 16 M & W at 655)‘not dealing in the way of a common trade’. And finally in the forerunner case of Jones v Just we find Mellor J in his fourth and fifth categories, which anticipate respectively s 14(1) and s 14(2) of the Sale of Goods Act 1893, referring to a manufacturer or dealer contracting to

supply an article which he manufactures or produces, or in which he deals, and to a manufacturer undertaking to supply foods manufactured by himself or in which he deals, so clearly following and adopting the prior accepted division between sales by way of trade and private sales.

One asks, therefore, what difference the insertion in the Sale of Goods Act 1893 of the word ‘description’ made to these well accepted rules. It seems at least clear that the words now appearing in s 14(1) ‘and the goods are of a description which it is … the seller’s business to supply’ cannot mean more than ‘the goods are of a kind …’ ‘Description’ here cannot be used in the sense in which the word is used when the Act speaks of ‘sales by description’, for s 14(1) is not dealing with sales by description at all. If this is so, I find no obstacle against reading ‘goods of that description’ in a similar way in s 14(2). In both cases the word means ‘goods of that kind’ and nothing more. Moreover, even if this is wrong, and ‘description’ is to be understood in a technical sense, I would have no difficulty in holding that a seller deals in goods ‘of that description’ if he accepts orders to supply them in the way of business; and this whether or not he has previously accepted orders for goods of that description. So, all other elements being present as I have tried to show, I would hold that s 14(1) applies to the present case. I would agree with the judge that s 14(2) equally applies and disagree with the reasons (based on the ‘description’ argument) which led the Court of Appeal ([1969] 3 All ER 1496, [1969] 2 Lloyd’s Rep 425) to a contrary opinion. That the goods were unmerchantable was conceded in both courts, in my opinion, rightly so. Goods may quite well be unmerchantable even if ‘purpose built’. Lord Wright made this quite clear in the Cammell Laird case; so equally with ‘King Size’ mink food. I would therefore allow the appeal.

The appeal of Christopher Hill Ltd (the respondents) against Norsildmel (‘the third party’) raises different, and in one respect at least, more difficult issues. The goods supplied were in this case Norwegian herring meal and they were supplied under the terms of a commodity market contract in writing. A number of points arise under it. On the following I express my concurrence with others of your Lordships, and do not think it necessary to add reasons of my own.

(1) The respondents were not in breach of a term in the contract implied

by virtue of s 13 of the Sale of Goods Act 1893. The goods supplied were, in my opinion, Norwegian herring meal. The words ‘fair average quality of the season’ were not in this contract part of the description. I do not find it necessary to consider whether, if they were, there was a breach of any implied condition that the goods should correspond with this description. They were not relied on as themselves importing a warranty; but if the contention is open I am in agreement with my noble and learned friend, Lord Diplock, for the reasons which he gives, that they do not cover the particular defect which existed.

(2) The exemption clause contained in general condition 3 does not exclude a claim for breach of any warranty implied under s 14(1) of the Act.

This leaves the substantial question whether a term as to reasonable fitness ought to be implied under s 14(1) of the Act. There was also raised a question as to remoteness of damage but, in the view which I take, this depends on the same considerations as those necessary for determination of liability under s 14(1). I now consider this question. In so doing I should make it clear that although I refer to Norsildmel as the third party, the actual contract for sale was made with a committee called Sildemelutvalget to whom the third party succeeded in 1964, but no distinction has been made between these organisations. What is necessary to determine is whether any particular purpose for which the goods were required was made known by the buyers to the sellers so as to show that the buyers relied on the sellers’ skill and judgment; what the particular purpose was; finally, whether the particular purpose included feeding to mink. The particular purpose relied on by the respondents was that the meal was required for inclusion in animal feeding stuffs to be compounded by them. They do not contend that feeding to mink was explicitly stated as a purpose; but they say that feeding to mink was known to both parties as a normal user for herring meal, and that it was sold without any reservation or restriction as to the use to which it might be put. The sale was negotiated through an agent in England, C T Bowring & Co Ltd on behalf of Sildmelutvalget, but no point has been taken as to any limitation on their knowledge as compared with that of their principals.

The scope and application of s 14(1) of the Sale of Goods Act 1893 was fully considered by this House in Henry Kendall & Sons (a firm) v William Lillico & Sons Ltd. The opinion expressed in that case endorsed a tendency which other cases (such as Manchester Liners Ltd v Rea Ltd had shown, to expand the scope of s 14(1) so as to cover territory which might otherwise, on a first reading, have been thought to belong to s 14(2). I think that this tendency essentially reflects a reversion to the more general approach to questions of the seller’s liability under implied warranty adopted by the common law, as contrasted with the compartmentalisation into separate, but inevitably overlapping, provisions adopted by the Sale of Goods Act 1893. Naturam expellas furca is a maxim which tends to apply to codifications. At any rate it is clear that this House in Kendall v Lillico accepted that the ‘making known’ so as to show reliance which the section requires is easily deduced from the nature and circumstances of the sale, and that the word ‘particular’ means little more than ‘stated’ or ‘defined’. As Lord Pearce said in Kendall v Lillico ([1968] 2 All ER at 483, [1969] 2 AC at 115) there is no need for a buyer formally to ‘make known’ that which is already known; and here there is no doubt that the third party, through its selling agents, C T Bowring & Co Ltd, and also directly, knew what the herring meal was required for, ie for inclusion in animal feeding stuffs to be compounded by the appellants and no special purpose in relation to mink was relied on. The third party was, moreover, a committee, or co-operative, of manufacturers of herring meal; in this case, whether one speaks of implication or presumption, the conclusion can hardly be otherwise than that of reliance by the appellants to produce a product reasonably fit for the purpose. I observe, indeed, that my noble and learned friend, Lord Guest, who felt difficulty in Kendall v Lillico ([1968] 2 All ER at 475, [1969] 2 AC at 106) as to the application of s 14(1) against persons who were dealers in the market, said that he could well understand, where the sale is by a manufacturer to a customer, that the inference (ie of reliance) can easily be drawn. I agree with Milmo J that it ought to be drawn in this case.

Then was the purpose, to be used for inclusion in animal feeding stuffs to be compounded by the buyers, a particular purpose? In my opinion, certainly yes. It is true that the purpose was wide, wider even than the purpose accepted as particular in Kendall v Lillico (for compounding into

food for cattle and poultry) and, if one leaves aside a possible alternative use as fertiliser, on which there was some indefinite evidence, the purpose so made known covers a large part of the area which would be within s 14(2). But I do not think, as the law has developed, that this can be regarded as an objection or that in accepting a purpose so defined, as a ‘particular purpose’, the court is crossing any forbidden line. There remains a distinction between a statement (express or implied) of a particular purpose, though a wide one, with the implied condition (or warranty) which this attracts, and a purchase by description with no purpose stated and the different condition (or warranty) which that attracts. Moreover, width of the purpose is compensated, from the seller’s point of view, by the dilution of his responsibility; and to hold him liable under an implied warranty of fitness for the purpose of which he has been made aware, wide though this may be, appears as fair as to leave him exposed to the vaguer and less defined standard of merchantability. After all, the seller’s liability is, if I may borrow the expression of my noble and learned friend, Lord Morris of Borth-y-Gest, no more than to meet the requirement of a buyer who is saying to him ‘that is what I want it for, but I only want to buy if you sell me something that will do’. I think that well expresses the situation here.

The next point is whether, when the meal turned out to be unsuitable for feeding to mink, this was a matter to be treated as within the respondents’ responsibility. There are two distinct points here: the first is whether feeding to mink was a normal use, within the general purpose of inclusion in animal feeding stuffs; the second is whether, assuming that the respondents’ implied warranty did not extend beyond that of general suitability for animals, including possibly mink, the buyers were able to show a breach of that warranty. The first point involves an issue of fact which received lengthy examination in the courts below. The decision on it depended to a great extent on the view taken of two Norwegian witnesses called by the third party, who were the assistant director of the third party and the chief executive of a Norwegian herring oil factory at the relevant time. These witnesses were called to show that the third party did not know in 1961 that herring meal might be fed to mink. Unfortunately the courts below reached different conclusions. Milmo J did not accept the disclaimer of the Norwegian witnesses. He found that both were aware in or before 1961 that herring meal was being fed to

mink in Norway and that herring meal was a normal and well-known ingredient of the diet of mink kept in captivity in Norway and (he added) in other countries. On this basis he found that Sildmelutvalget knew of the practice of feeding herring meal to mink.

The Court of Appeal ([1969] 3 All ER 1496, [1969] 2 Lloyd’s Rep 425) reached an opposite conclusion. They held that the respondents had failed to establish that at the date of the contract the third party should reasonably have contemplated that it was not unlikely that the herring meal, the subject-matter of the contract, might be fed to mink. On the contrary, they found on the evidence that the result of such contemplation would have been that it was highly unlikely that the herring meal would be fed to mink, and they added (though this would appear to be both an irrelevant matter and since the meal was not known to be toxic, also factually incorrect) to which alone it would be harmful. On this issue the careful re-examination of the evidence which took place in this House, convinced me that the Court of Appeal ([1969] 3 All ER 1496, [1969] 2 Lloyd’s Rep 425) was not justified in reversing in this matter the findings of fact of the trial judge. The latter were supported by the impression made on him by the two Norwegian witnesses in the witness box, by some important letters written by the third party in late 1960 on the subject of the herring meal and its potentiality as mink food, and by the general probabilities of the case, the fact that there were numerous mink and fox farms in Norway to which herring meal had been fed. In my opinion, we must reinstate the judge’s conclusion, that feeding to mink was a normal user in 1961 and known as such to the third party. That the relevant consignment, or part of it, might be fed to mink was also known to the third party.

I should add that some, but slight, reliance was placed on the fat content of the meal supplied. The argument was that herring meal with a high fat content is unsuitable for mink, that the herring meal in question had a high fat content and that this showed that the respondents could not be relying on the third party’s judgment. There are several answers to this. In the first place, the actual fat content (9·6 per cent) was below that fixed by the contract (12–13 per cent) which seems to show that the respondents regarded the herring meal as in this respect suitable. And, secondly, even if it were excessive, this could be a matter within the

respondents’ responsibility quite consistently with the purity of the meal being within the third party’s responsibility. The argument is, in my opinion, inconclusive.

If I am right so far on the question of suitability and reliance, similar considerations arise on the question whether the consignment was in fact unsuitable, so as to involve a breach of warranty, to those already discussed as between the appellants and the respondents, and for the same reasons the conclusion follows, in my opinion, that a breach of warranty under s 14(1) was proved. The respondents did not, in this part of the appeal, pursue a claim under s 14(2). Finally, any question as to remoteness of damages is disposed of by the finding that feeding to mink was a normal user and contemplated as such by both parties to the contract.

I would allow both appeals.

LORD DIPLOCK:

My Lords, it was no one’s fault that the Norwegian herring meal which was an ingredient of the compound feeding stuff for mink made the food poisonous to those animals. At the relevant time the possibility of the chemical reaction which produced the toxic substance DMNA in the course of manufacture of the meal was unthought of. In the then state of knowledge, scientific and commercial, no deliberate exercise of human skill or judgment could have prevented the meal from having its toxic effect on mink. It was sheer bad luck. The question in each of these appeals is: who is to bear the loss occasioned by that bad luck? Is it to be the buyer of the compound feeding stuff, who fed it to his mink? Or the seller, who compounded the feeding stuff using as an ingredient herring meal which he himself had bought for this and other purposes? That is the issue in the first appeal between the appellants as buyers and the respondents as sellers. And if it is to be the respondents as sellers of the compound feeding stuff can they as buyers of the herring meal recover the loss from their own seller, the third party. That is the question in the second appeal.

Initially the facts were complex and obscure. But they have been sifted

and analysed by Milmo J ([1968] 1 Lloyd’s Rep 457) and the Court of Appeal ([1969] 3 All ER 1496, [1969] 2 Lloyd’s Rep 425) and, save on one matter, they are clear. What is not proved one way or the other is whether or not the herring meal sold by the third party to the respondents would have had any deleterious effect at all on any animals, other than mink, to which it might reasonably be expected to be fed, if it were fed to them as an ingredient of their total diet in any proportion that herring meal might reasonably be expected to be used. Such chemical and biological facts as are now known are simple - and scientific. ‘Poison’ and ‘toxic’ are emotive words in ordinary speech. Revulsion is one’s instinctive reaction to any suggestion that a poison or toxin may be present in a food. But it is now known that there are many substances which are harmless, or in some cases even beneficial, when ingested in small quantities yet are damaging to health, or even fatal if consumed in higher concentrations. Up to a certain concentration in the diet the natural processes of the body will eliminate the toxic substance before it can do any detectable harm. Above that concentration it is poisonous. Below that concentration it is harmless - it has no deleterious effect. The critical concentration or ‘threshold’ for any toxic substance may vary widely between one species of animal and another, and within a single species there may be variations according to age groups or between individual animals.

It is in this scientific, non-emotive sense that DMNA (dimethylnitrosamine) is a ‘poison’ or ‘toxic’. It is derived from amino-acids by chemical reactions in which enzymes may play a part. Amino-acids are present in all proteins and, as the evidence in the instant case disclosed, traces of DMNA are commonly found in many human food stuffs such as instant coffee and cereal breakfast foods. But it is present in proportions which are well below the critical concentration at which the food stuff is harmful to the consumer or the nutritive value of its other ingredients is affected.

The critical concentration or threshold of DMNA for the different species of animals and birds has not yet been fully investigated by scientists. So far as it goes the undisputed scientific evidence in the instant case shows that there is a wide variation in the threshold for different species and that the threshold for mink is considerably lower than that of any other species

of animal or bird which has been the subject of scientific investigation. In particular the evidence was that it was considerably lower than for cattle, sheep, pigs and poultry. This does not, of course, mean that DMNA is not poisonous or at least deleterious to these other animals if consumed in sufficiently high concentrations. It is in this sense that ‘all animals are sensitive to DMNA’ as Dr Koppang, the acknowledged expert on this subject, stated; for it is only in this sense that this answer is reconcilable with all the rest of his lengthy and detailed evidence of the results of his scientific investigations.

There is thus nothing inherently improbable in a consignment of herring meal containing DMNA in a concentration which, on the one hand, was high enough to be fatal to mink when fed to them as 3 per cent of their diet, yet, on the other hand, was low enough to have no deleterious effect on the wholesomeness and nutritive value of the herring meal as a feeding stuff for all domestic livestock and birds, other than mink, to whom it might reasonably be expected to be fed, if it were fed to them as an ingredient of their total diet in any proportion that herring meal might reasonably be expected to be used. It was not possible, seven years after the event, to determine by chemical analysis what was the concentration of DMNA in any part of the Norwegian herring meal with which these two appeals are concerned. It had all been consumed: 8 ½ tons by mink in ‘King Size’ mink food and the remaining 325 tons by other domestic livestock and birds, ie pigs, calves, poultry, pheasants and rabbits. One can only infer what was the concentration of DMNA in the herring meal from its effect on the animals to which it was fed. Both Milmo J ([1968] 1 Lloyd’s Rep 457) and the Court of Appeal ([1969] 3 All ER 1496, [1969] 2 Lloyd’s Rep 425) were satisfied on the evidence that the composition of the herring meal which was fed to mink and that which was fed to other animals was substantially the same. It may have varied slightly from one bag to another, but the 2 ½ per cent of the consignment which was fed to mink was fairly representative of the whole.

Nearly all the mink who consumed ‘King Size’ mink food of which the Norwegian herring meal was an ingredient either died or suffered in their condition. One can infer, therefore, that concentration of DMNA in the herring meal was above the ‘threshold’ for mink when fed as about 3 per cent of their diet. All that one knows about the effect of the Norwegian

herring meal on the well-being of other animals to whom it was fed, either as an ingredient of other compound feeding stuffs sold by the respondents or as mixed with other feeding stuffs by customers of the respondents to whom the herring meal was sold straight, is that whatever may have been the percentage of their diet constituted by the herring meal no complaints were received by the respondents from any of their customers. The identity of the customers was known to all the parties to the appeals. None was called to give evidence at the trial. This may well have been because at that stage of the proceedings it was not appreciated that this would be the crucial issue of fact on which both these appeals, in my opinion, turn. Milmo J’s finding on this issue was stated thus ([1968] 1 Lloyd’s Rep at 480):

‘While I accept that there was no evidence that the meal had a deleterious effect upon any animal or other type of livestock other than mink, I do not consider that it was proved affirmatively that the meal which killed the mink could have been fed with impunity to all other types of livestock.’

I am content to accept both parts of this finding as to the effect of the evidence. The first part was expressly concurred in by the Court of Appeal ([1969] 3 All ER 1496, [1969] 2 Lloyd’s Rep 425). Some of the language in their judgment is consistent with its being their opinion that the innocuous character of the herring meal as an ingredient in the diet of the other animals and birds to which it was fed had been established affirmatively. But it does not seem that their minds were directed to the question as to the party on whom the onus of proving or disproving this lay in either of the appeals. I do not think that the evidence as recorded justifies an appellate court departing from the finding of the judge who heard the witnesses at the trial.

My Lords, the claim in each of these appeals is for damages for breach of a contract for the sale of goods. It will, therefore, be necessary to relate them to the relevant statutory provisions of the Sale of Goods Act 1893. In the form in which the Bill was originally drafted by Sir MacKenzie Chalmers that Act was intended to state the common law rules relating to the sale of goods as they had been developed by judicial decision up to 1889. Although a number of amendments were made in committee during

the passage of the Bill through Parliament, they did not alter the essential character of the Act as expository of the common law of England at the date at which it was passed. But the exposition contained in the Act is only partial. It does not seek to codify the general law of contract of England or Scotland. It assumes the existence as a basic principle of the English law of contract that, subject to any limitations imposed by statute or by common law rules of public policy, parties to contracts have freedom of choice not only as to what each will mutually promise to do but also as to what each is willing to accept as the consequences of the performance or non-performance of those promises so far as those consequences affect any other party to the contract. The paramountcy of this freedom of choice as to promises made in contracts for the sale of goods is acknowledged by s 55 of the Act. The provisions of the Act are in the main confined to statements of what promises are to be implied on the part of the buyer and the seller in respect of matters on which the contract is silent, and to statements of the consequences of performance or non-performance of promises, whether expressed or implied, where the contract does not state what those consequences are to be. Even a code whose content is so limited must proceed by classifying promises, both those which are expressed and those to be implied; the circumstances which give rise to implied promises, and how they are to be performed and the consequences of performing each class of promise or of failing to perform it. Because of the source of the rules stated in the Sale of Goods Act 1893, the classification adopted is by reference to the promises made in relatively simple types of contracts for the sale of goods which were commonly made in the nineteenth century and had been the subject of judicial decision before 1893. But although the language in which the rules are expressed is appropriate to these simple types of contracts, it has to be applied today to promises made in much more complicated contracts which cannot be readily allotted to any single class of contract which appears to be primarily envisaged by a particular section or subsection of the code. Unless the Sale of Goods Act 1893 is to be allowed to fossilise the law and to restrict the freedom of choice of parties to contracts for the sale of goods to make agreements which take account of advances in technology and changes in the way in which business is carried on today, the provisions set out in the various sections and subsections of the code ought not to be construed so narrowly as to force on parties to contracts for the sale of goods promises and consequences

different from what they must reasonably have intended. They should be treated rather as illustrations of the application to simple types of contract of general principles for ascertaining the common intention of the parties as to their mutual promises and their consequences, which ought to be applied by analogy in cases arising out of contracts which do not appear to have been within the immediate contemplation of the draftsman of the Act in 1893.

In each of the instant appeals the dispute is as to what the seller promised to the buyer by the words which he used in the Contract itself and by his conduct in the course of the negotiations which led up to the contract. What he promised is determined by ascertaining what his words and conduct would have led the buyer reasonably to believe that he was promising. That is what is meant in the English law of contract by the common intention of the parties. The test is impersonal. It does not depend on what the seller himself thought he was promising, if the words and conduct by which he communicated his intention to the seller would have led a reasonable man in the position of the buyer to a different belief as to the promise; nor does it depend on the actual belief of the buyer himself as to what the seller’s promise was, unless that belief would have been shared by a reasonable man in the position of the buyer. The result of the application of this test to the words themselves used in the contract is ‘the construction of the contract’. So far as the reasonable belief of the buyer as to what the seller’s promise was, would have been influenced by any conduct of the seller before the contract was made, any implication as to the nature of his promise falls to be determined by applying to his conduct the general principles for ascertaining the common intention of parties to a contract for the sale of goods which underly the relevant provisions of the Sale of Goods Act 1893. My Lords, since I believe that the basic principle of the English common law of contract, including that part of it which is codified in the Sale of Goods Act 1893, is to give effect to the common intention of the parties as to their mutual promises in the sense that I have just described, I prefer to deal with each appeal by considering first the transaction between the buyer and the seller in the light of common sense and good faith in business, before examining the particular provisions of the code on which the parties rely.

In the first appeal the goods which were the subject-matter of the contract

of sale between the respondents and the appellants were a compound feeding stuff, ‘King Size’ mink food, which the respondents, the sellers, knew were intended by the appellants, the buyers, to be fed to mink. The feeding stuff was to be compounded by the respondents, according to a formula prepared by the appellants, of ingredients specified by the appellants and to be provided by the respondents. Most of the specified ingredients, including the herring meal, were of a kind which the respondents had previously used in the course of their business of compounding feeding stuffs to be fed to domestic animals and birds other than mink. The appellants were experts on the nutritional requirements of mink. The respondents disclaimed all knowledge of this subject and the appellants knew that they had never before compounded or sold a feeding stuff to be fed to mink. The respondents, however, professed a general expertise in the compounding of feeding stuffs for domestic animals and poultry (including pheasants) and in the selection and purchase in the market of the various ingredients needed in the preparation of compound feeding stuffs intended for that purpose. Nothing was said in the contract itself about the suitability as food for mink of the compounded feeding stuff or any of its ingredients.

If the law of sale of goods is as sensible and simple as it ought to be, the question of law for the court should be: what, if any, responsibility as to the characteristics of the goods to be supplied under the contract would the seller reasonably understand that the buyer believed that he, the seller, was accepting? Or, put in the obverse form: what responsibility as to the characteristics of the goods to be supplied would the buyer reasonably believe that the seller was accepting by entering into the contract? And in the circumstances of the present case that question of law can be reduced to this: would the respondents’ reasonable understanding and the appellants’ reasonable belief be that the respondents were accepting responsibility to deliver feeding stuffs characterised by their being compounded in accordance with the formula provided by the appellants and composed of ingredients of the kinds specified and of a quality suitable for use in compound feeding stuffs for domestic animals and poultry? Or were their respective reasonable understanding and belief that the respondents were accepting an additional responsibility that feeding stuffs so compounded and composed would be suitable for feeding to mink? So stated, as it seems to me, the question answers itself. The

additional responsibility was not one which, in the circumstances of this case, either party would understand or believe that the respondents were accepting. So, if the law of sale of goods is in accord with common sense and good faith in business, the appellants on the findings of fact to which I have referred, have failed to prove that the goods delivered by the respondents did not conform with the only characteristics for which the respondents have accepted responsibility, and the respondents have failed to prove that the goods did so conform.

I turn then to the particular provisions of the Sale of Goods Act 1893 on which the appellants seeks to rely. These are ss 13 and 14(1) and (2). Sections 13 and 14(2) apply to contracts for the sale of goods ‘by description’. This expression is also used in s 18, r 5, but the Act nowhere defines its meaning. Not all statements about the characteristics of goods which are the subject-matter of a contract of sale form part of the ‘description’ by which they are sold. Sections 13 and 14 draw a distinction between the description by which goods are sold, on the one hand, and their fitness for the particular purpose for which they are required and their quality, on the other. Section 14(4) recognises that a contract for the sale of goods may contain an express statement about the fitness of the goods for a particular purpose or their quality which does not form part of the description by which they are sold but constitutes a separate stipulation in the contract which may be either a condition or a warranty, depending on the construction of the contract (see s 11(1)(b)).

A contract for the sale of goods is one whereby the property in goods which have been physically identified is transferred from the seller to the buyer (see ss 1(1) and 16). But a contract may be made for the sale of unascertained goods before the actual goods in which the property is to be transferred are physically identified and agreed on. At the time of making such a contract the kind of goods which are its subject-matter can only be identified verbally and/or by reference to a sample. The ‘description’ by which unascertained goods are sold is, in my view, confined to those words in the contract which were intended by the parties to identify the kind of goods which were to be supplied. It is open to the parties to use a description as broad or narrow as they choose. But ultimately the test is whether the buyer could fairly and reasonably refuse to accept the physical goods proffered to him on the ground that their failure to

correspond with that part of what was said about them in the contract makes them goods of a different kind from those he had agreed to buy. The key to s 13 is identification.

The appellants base their claim against the respondents in the first instance on s 13 of the Act. The goods, they submit, did not correspond with the description by which they were sold. The contract was oral. The subject-matter was unascertained goods, and it is common ground that the description by which they were sold was contained in the appellant’s formula which set out in detail the ingredients of the feeding stuff to be compounded by the respondents. One of the described ingredients was ‘herring meal’. The appellants contended that the description also included the expression ‘mink food’ - but for the purposes of the claim under s 13 I do not think this matters. DMNA was not an ingredient referred to in the formula. Milmo J ([1968] 1 Lloyd’s Rep at 479, 480), following the cases about the sale of ‘copra cake’ [i.e. Pinnock Brothers v Lewis and Peat Ltd [1923] 1 KB 690 and British Oil and Cake Co Ltd v Burstall & Co Ltd (1923) 15 Lloyd LR 46] which was contaminated with castor seed, held that a feeding stuff which contained DMNA in quantities which rendered it toxic to mink did not correspond with the description by which the goods were sold. I agree with your Lordships and the Court of Appeal ([1969] 3 All ER 1496, [1969] 2 Lloyd’s Rep 425) that this is not so. The appellants’ formula was commercial not chemical. The ingredient described as ‘herring meal’ did not cease to comply with that description because it was manufactured from herrings to which a preservative had been added to prevent them from deteriorating. The most usual preservative is common salt (sodium chloride) but the evidence showed that another salt of sodium, sodium nitrite, had been used in Norway for several years before 1961. In certain conditions which can occur during the normal process of manufacture of herring meal the amino-acids naturally present in the herring break down into an organic chemical dimethylamine, which can react with sodium nitrite to form DMNA (dimethylnitrosamine). The occurrence of this reaction may affect the quality of the meal. It does not alter its identity as ‘herring meal’.

Alternatively the appellants sought to bring their claim under s 14(1) or s 14(2). These two subsections are inter-related. Unlike s 13 they are not

concerned with the identity of the goods which are the subject-matter of the contract, but with their ‘quality’ or their ‘fitness for any particular purpose’. All goods which are sold finish up by being used for some purpose or another by the ultimate user, consumer or converter. This is not necessarily the actual buyer under the contract of sale. He may intend to pass them on by sale or otherwise to the person who actually puts them to that use. But the purpose for which they will be used by the ultimate consumer or converter is the ‘purpose for which the goods are required’ within the meaning of s 14(1). The only condition as to ‘quality’ which is to be implied under s 14(2) is that the goods shall be of ‘merchantable quality’. This is likewise concerned with use. Goods are of merchantable quality if they are fit for use for any purpose for which goods which correspond with the description by which they were sold would normally be used. The dichotomy between the two sections is thus between fitness for use for a ‘particular purpose’ and fitness for use for one of several purposes for which goods which correspond with the description by which they were sold would normally be used. But if there is only one purpose for which goods of that description would normally be used, the condition to be implied under each of the subsections is the same. In such a case one would expect to find some common principle which links the circumstances which give rise to the implied condition under sub-s (1) and the circumstances which give rise to the implied condition under sub-s (2).

So far as concerns the conduct of the buyer, the circumstances which give rise to the implied condition under sub-s (1) are first, that he should make known expressly or by implication to the seller what is the particular purpose for which the goods are required and, secondly, that he should do so in such a way as to make the seller reasonably understand that he is relying on the seller to exercise sufficient skill or judgment to ensure that the goods are fit for that particular purpose. This he generally does by selecting a seller who makes it his business to supply goods which are used for purposes of that kind. It does not matter that the seller does not possess the necessary skill or judgment nor does it matter that in the then state of knowledge no one could by exercise of skill or judgment detect the particular characteristic of the goods which rendered them unfit for that purpose. This may seem harsh on the seller, but its harshness is mitigated by the requirement that the goods must be of a description

which it is in the course of the seller’s business to supply. By holding himself out to the buyer as a manufacturer or dealer in goods of that kind he leads the buyer reasonably to understand that he is capable of exercising sufficient skill or judgment to make or to select goods which will be fit for the particular purpose for which he knows the buyer wants them.

I have used the word ‘kind’ as meaning the same as the word ‘description’ in the subsection. The subsection applies to all types of contracts for the sale of goods: to contracts for the sale of specific goods or for sale by sample, which are not contracts of sale of goods ‘by description’, as well as to contracts which are. Where the contract is not one for the sale of goods by description the expression in the subsection ‘goods … of a description which it is in the course of the seller’s business to supply’ can only mean that the seller does deal in goods of a kind that can be verbally identified by a description that is wide enough to include goods which are intended for use for the particular purpose for which the buyer requires the goods which are the subject-matter of the contract. I do not think that this expression bears any different meaning when the contract is one for sale of goods by description. I agree with the Court of Appeal ([1969] 3 All ER 1496, [1969] 2 Lloyd’s Rep 425) that it is not limited to the ‘description’ by which the actual goods that are the subject-matter of the contract are sold. It would have been no defence to the sellers in Cammell Laird & Co Ltd v Manganese Bronze and Brass Co Ltd to say that they had never previously supplied a ship’s propeller of the particular dimensions ordered although these did form part of the description by which the goods which were the subject-matter of that contract were sold. It was sufficient that it was in the course of their business to supply ships’ propellers.

In contrast to sub-s (1) the corresponding conduct of the buyer which gives rise to the implied condition under sub-s (2) is that he should have bought the goods ‘by description’. The subsection does not apply to any other type of contract for the sale of goods. By describing the goods that are to be the subject-matter of the contract the buyer makes it known to the seller by implication that the goods are required for, at any rate, one of the purposes for which the goods of that description are normally required - or, if there is only one such purpose, that they are required for

that purpose. But, as in the case of sub-s (1), the mere ordering of goods by description does not suffice to show the buyer’s reliance on the seller’s knowledge of the purposes for which goods of that description are normally used or of the characteristics needed to make them fit for any of those purposes. It is only by selecting a seller who makes it his business to supply goods of the same description as that by which the goods which are the subject-matter of the contract are bought, that the buyer shows his reliance on the skill and judgment of the seller to supply goods which are reasonably fit for one of the purposes disclosed by the description by which the buyer has bought the goods. For this description constitutes the only information which the buyer has given the seller about the purpose for which the goods are required. It follows that I agree with the Court of Appeal ([1969] 3 All ER 1496, [1969] 2 Lloyd’s Rep 425) that in the phrase in sub-s (2): ‘Where goods are bought by description from a seller who deals in goods of that description’, the words ‘that description’ refer to and mean the actual description by which the goods which are the subject-matter of the contract were bought. Not only is it impossible to ascribe any other meaning to it grammatically but also, as I have endeavoured to explain, it makes goods commercial sense. The expression ‘that description’ in sub-s (2) as referring to goods in which the seller deals, is thus narrower in meaning than the expression ‘a description’ in sub-s (1) as referring to goods which it is in the course of the seller’s business to supply. The key to both subsections is reliance - the reasonable reliance of the buyer on the seller’s ability to make or select goods which are reasonably fit for the buyer’s purpose coupled with the seller’s acceptance of responsibility to do so. The seller has a choice whether or not to accept that responsibility. To enable him to exercise it he must be supplied by the buyer with sufficient information to acquaint him with what he is being relied on to do and to enable him to appreciate what exercise of skill or judgment is called for in order to make or select goods which will be fit for the purpose for which the buyer requires them.

This consideration, in my view, throws light on two matters arising under s 14. The first is the meaning of ‘particular purpose’ in sub-s (1). The second is the application of the doctrine of ‘partial reliance’ under both sub-s (1) and sub-s (2). To attract the condition to be implied by sub-s (1) the buyer must make known the purpose for which he requires the goods

with sufficient particularity to enable a reasonable seller, engaged in the business of supplying goods of the kind ordered, to identify the characteristics which the goods need to possess to fit them for that purpose. If all that the buyer does make known to the seller is a range of purposes which do not all call for goods possessing identical characteristics and he does not identify the particular purpose or purposes within that range for which he in fact requires the goods, he does not give the seller sufficient information to enable him to make or to select goods possessing a characteristic which is needed to make them fit for any one of those purposes in particular, if the same characteristic either is not needed to make them fit, or makes them unfit, for other purposes within the range. A ‘range of purposes’ case thus poses a stark question of legal policy as to whether the seller’s responsibility ought to be to supply goods which are fit for at least one of the purposes within the range or to supply goods which are fit for all of those purposes unless he expressly disclaims responsibility for their fitness for any one or more of them. The answer to this question of policy has, in my view, been pre-empted by s 14(2) of the Sale of Goods Act 1893. The commonest way in which a buyer makes known to the seller a range of purposes for which the goods are required is by the description by which he buys them and by nothing more. This is the case that is contemplated by sub-s (2). This, as it has been authoritatively construed by the courts, provides that the only condition to be implied as to the responsibility of the seller is that the goods should be reasonably fit for one of the purposes within the range. To supplement the description by which the goods are bought, or to replace it if they are not bought by description, the buyer may identify with greater precision the purpose for which the goods are required, by making it known to the seller in some other way. This is the case contemplated by sub-s (1). He may do this expressly or by implication. At any rate, if he does so expressly he can make it known to the seller that he relies on the seller to supply goods that are fit for more than one purpose or, indeed, for all possible purposes which lie within a range. But the mere fact that the seller knows that the buyer is engaged in a business in which goods of the description by which they are bought may be needed for any one of a number of purposes within the range of those for which goods of that description are normally used, adds nothing to what he might reasonably infer from the

fact that the buyer ordered the goods by a description which covers goods fit for a range of purposes, without particularising which of those purposes he requires goods for. It might be otherwise if the seller knew that the buyer was engaged in a business in which goods of the description by which they were bought were needed for one or more only of the purposes within the whole range.

It would, in my view, conflict with the principle of reliance which underlies s 14(1) and (2) and would be a misuse of a statutory code of this kind, to treat a range of purposes for any one of which the buyer may require the goods on the one hand as constituting ‘the particular purpose for which the goods are required’ and so giving rise to an implied condition under sub-s (1) that they shall be reasonably fit for all purposes within the range, if the seller’s knowledge of the range is derived in whole or in part from some circumstance other than the description by which the goods are ordered; and on the other hand as giving rise to an implied condition under sub-s (2) that the goods need only be fit for one of the purposes within the range if the seller’s knowledge of the range is derived solely from the description by which the goods are ordered. So to construe the code would for practical purposes deprive sub-s (2) of any effect.

I turn next to ‘partial reliance’. The actual words of sub-s (1) appear to contemplate two classes of contracts only: one, where the buyer does not rely at all on the skill or judgment of the seller to see to it that the goods supplied are reasonably fit for a particular purpose; the other where the buyer does so rely and the other requirements of the subsection are satisfied. As a matter of linguistics it is possible to construe the expression ‘so as to show that the buyer relies’ as referring to a reliance which was only partial, in the sense that the reliance was not the only or even the determinative factor which induced the buyer to enter into the contract. But it is not possible to extract from the language of the subsection any qualification on the implied undertaking by the seller, if there is such reliance, that the goods supplied by him shall be reasonably fit for the particular purpose for which they are required by the buyer. Yet as a result of technological advances since 1893 there are an increasing number of cases where the preparation of goods fit for a particular purpose calls for the exercise of more than one kind of expertise. The

buyer may himself possess one of the kinds of expertise needed but lack another and may choose a seller who has led him to believe that he, the seller, possesses it. The only reliance by the buyer on the skill or judgment of the seller is that in the preparation or selection of the goods he will exercise that kind of expertise which he has led the buyer reasonably to believe that he possesses. The goods supplied may then be unfit for the particular purpose for which both parties knew they were required either because of a defect which lay within the sphere of expertise of the seller or because of a defect which lay within the sphere of expertise of the buyer himself. The way in which the principle of reliance which underlies sub-ss (1) and (2) should be applied to a more complex contract of this kind, which was not in the immediate contemplation of the draftsman of the code, poses another stark question of legal policy. In large part this decision was made by your Lordships’ House in 1934 in the Cammell Laird case. It was there laid down that if the defect in the goods which rendered them unfit for their purposes was due to a characteristic which lay within the sphere of expertise of the seller to detect and avoid, the responsibility for their unfitness lay with the seller. The ratio decidendi leads ineluctably to the corollary that if the defect was due to a characteristic which it lay within the sphere of the expertise of the buyer to detect and avoid, the seller was not contractually responsible for it. It did not attract the implied condition under sub-s (1). The field of the seller’s undertaking as to the fitness of the goods for the purpose corresponded with the field of the buyer’s reliance on the skill and judgment of the seller.

My Lords, this seems to me to be consistent with common sense and business honesty. It was accepted as the correct principle by both courts below and by all parties to the appeals in this House. But the Cammell Laird case leaves open for decision an ancillary question of legal policy which your Lordships are now called on to decide for the first time. That question is whether, in a case of partial reliance of this kind, once the goods have been proved to be unfit for the purpose for which they were required the onus lies on the buyer to prove that the defect was due to a characteristic which it lay within the field of expertise of the seller to detect and avoid; or does it lie on the seller to prove that the defect was due to a characteristic which lay within the sphere of expertise of the buyer? I do not think that there is anything in the Sale of Goods Act 1893

or in hitherto accepted law which inhibits your Lordships from deciding this question whichever way commends itself to the majority. The choice depends largely on one’s personal view as to whether the swing of the pendulum since 1893 from caveat emptor to caveat venditor has now gone far enough and ought to be arrested, or whether it should be given a further impetus, albeit a minor one, on its current course. For my part I would have been in favour of arresting it; but I recognise that a decision to the contrary is simply one of policy and, as it commends itself to the majority of your Lordships, I accept it with good grace as now forming part of the law of contracts for the sale of goods.

Once it is accepted, it is decisive of the first appeal. The respondents’ sphere of expertise on which the appellants relied lay in the selection of ingredients for ‘King Size’ mink food which would be of a quality suitable for use in compound feeding stuffs for domestic animals and poultry other than mink. The particular purpose, known to both parties, for which the appellant required the ‘King Size’ mink food was as a feeding stuff for mink. The appellants proved that it was unsuitable for that purpose and that its unsuitability was due to the quality of an ingredient, herring meal, selected by the respondents. On the findings of fact of Milmo J the respondents failed to prove affirmatively that the herring meal was of a quality suitable for use in compound feeding stuffs for domestic animals and poultry other than mink. Therefore, the appellants were entitled to succeed on their claim for damages for breach of the condition to be implied under s 14(1) of the Sale of Goods Act 1893.

On the other hand, I do not think that the contract between the appellants and the respondents was one which attracted any implied condition as to merchantable quality under s 14(2) of the Act. The expression ‘merchantable quality’ in relation to goods implies that at the time of the contract of sale there already exists a market in goods of the kind described from which it is possible to identify a standard of comparison or norm with which the goods should correspond in order to be acceptable to a reasonable buyer of such goods in that market. There was no existing market in ‘King Size’ mink food. It was an entirely new product in which the respondents made plain to the appellants that they had never dealt before. The contract was for the sale of goods by

description; but whether the description was limited to what was stated in the appellant’s formula as to the ingredients and their proportions or whether it also included a reference to the goods as a feeding stuff for mink, the description was not one of goods in which the respondents dealt within the meaning of s 14(2). To hold the contrary would, in my view, conflict with the principle of reliance which underlies both s 14(1) and (2). If the ‘King Size’ compound had been unsuitable as a feeding stuff for mink solely because any food compounded in accordance with the appellant’s formula would have been unsuitable for mink, it would have been unmerchantable for there was no other purpose for which it could be used in commerce. Yet it would be contrary to common sense and business honesty if the respondents, who had done precisely that which the appellants had reasonably relied on them to do, were liable for a defect in the goods in a respect in which no reliance had been placed on the respondents.

I turn next to the second appeal in which the respondents seek to recover from the third party, as damages for breach of its contract of sale with them, the amount which they are liable to pay to the appellants.

This contract was in writing. It was for Norwegian herring meal, a commodity in which the third party dealt. Commercially it is classified as a fish meal, but since characteristics of fish meals differ it is generally sold under the name herring meal with or without a reference to the country of origin. It was common knowledge in the trade that its normal use in the United Kingdom was as a protein rich constituent in the diet of a variety of domestic animals and poultry, including pheasants. But prior to its inclusion in ‘King Size’ mink food it had not been used in the United Kingdom as a feeding-stuff for mink. At the date of the respondent’s contract with the third party no one but the respondents and the appellants knew that herring meal, as distinct from fish meal, was ever fed to mink in this country. The goods were ordered through the third party’s agent in London, Bowrings. They knew that the respondents were compounders of animal feeding stuffs and that the Norwegian herring meal was required by the respondents for the purpose of inclusion in compound feeding stuffs for domestic animals and poultry, including pheasants. They did not know, and had no reason to suspect, that the respondents intended to include the meal as an ingredient of a feeding

stuff for mink. If they had known they would have enquired of their principals, the third party, whether Norwegian herring meal was suitable for that purpose.

Milmo J found as a fact that the third party knew that by the date of the contract herring meal was being fed to mink by Norwegian farmers. The Court of Appeal ([1969] 3 All ER 1496, [1969] 2 Lloyd’s Rep 425) considered that this finding was contrary to the weight of the evidence. I do not, however, think that an appellate court would be justified in setting aside a finding of primary fact which was based in part at least on Milmo J’s view of the reliability of the oral evidence given at the hearing. On the other hand, it is clear on the evidence that it was known to the third party that in order to be suitable as an ingredient in the diet of mink in Norway herring meal needed to possess special characteristics which were not present in most herring meal produced in Norway nor needed in order to make it suitable as an ingredient in the diet of domestic animals and poultry. One such characteristic was a low fat content of less than 6 per cent, whereas the normal fat content of herring meal sold by the third party, at any rate in the winter season, was about 12 per cent. The herring meal ordered by the respondents was stated to have a fat content of this order.

My Lords, before coming to the specific provisions of the Sale of Goods Act 1893, I again prefer to start by posing the question: what, if any, responsibility as to the characteristics of the goods to be supplied under the contract would the seller reasonably understand that the buyer believed that he, the seller, was accepting? And in the circumstances of the present appeal that question can be reduced to this: would the third party’s reasonable understanding and the respondents’ reasonable belief be that the third party was accepting responsibility to deliver Norwegian herring meal which possessed characteristics which made it suitable for inclusion as an ingredient in the diet of mink, as distinguished from other animals? So stated, as it seems to me, the question answers itself. The respondents never let the third party know that they required the herring meal for feeding to mink. It had no reason to suspect that it was required for a use to which it had never previously been put in the country in which it was to be consumed. The fat content provided for in the contract made it unsuitable for the only use of herring meal as a food for mink of

which it had any knowledge, ie in Norway. It was given no opportunity to exercise any skill or judgment in selecting herring meal which would have the special characteristics which would render it suitable as a food for mink as distinguished from other animals.

So I come once more to s 13 of the Sale of Goods Act 1893, on which the respondents in turn found their claim against the third party. Since the contract was in writing the description by which the goods were sold must be determined by construing the words used by the parties in the contract. What the contract said about the goods was:

‘NORWEGIAN HERRING MEAL fair average quality of the season, expected to analyse not less than 70% Protein, not more than 12% Fat and not more than 4% Salt.’

I agree with your Lordships that the description by which the goods were sold is limited to the words ‘Norwegian herring meal’. That is what identifies the subject-matter of the contract. Where a contract contains an express statement about the quality of the goods to be supplied the prima facie inference is that this was intended by the parties not as an identification of the kind of goods that are alone the subject-matter of the contract, but as an express stipulation as to the standard of quality to which goods of that kind supplied under the contract shall conform. Such an express stipulation may be intended as a condition or as a warranty. Which it is depends on the construction of the contract. This, in turn, depends on what can be inferred, from the whole of the terms of the contract and the circumstances in which it was negotiated, as to the importance that the parties attached to it. Did they regard exact conformity with the stipulated standard as so vital to the contract that no distinction was to be drawn between a minor divergence or one which was great? Or did they intend to differentiate according to the magnitude of the divergence? If the former, the stipulation is a condition and the consequence of a breach of it would be the same as if the stipulation did form part of the description by which the goods were sold, though it would be classified under s 11 as an express condition and not as an implied condition under s 13. If the latter, the stipulation is an express warranty, but does not exclude reliance on the implied condition of merchantable quality under s 14(2) if the divergence is so great as to

make the goods not reasonably fit for any purpose for which they are normally used.

In a contract, such as that between the respondents and the third party, for the sale of a commodity in which there is an established market and for which there is more than one normal use, a divergence from the stipulated standard of quality which falls short of rendering them useless for every normal use, would be reasonably expected by both parties to affect the value of the goods according to the magnitude of the divergence, and prima facie to amount only to a warranty, a breach of which would not entitle the buyer to reject the goods as being dehors the contract. That such was the intended effect of the stipulation ‘fair average quality of the season’ is, in my view, confirmed by general condition 3: ‘The goods to be taken with all faults and defects damaged or inferior, if any, at valuation to be arranged mutually or by arbitration’. I construe this clause as excluding any right of the buyer to reject the goods for any non-conformity with the stipulation as to quality which falls short of rendering them unmerchantable. The respondents did not allege any express warranty or quality in their pleading. They relied on the words ‘fair average quality of the season’ as being part of the description by which the goods were sold. I will, however, come back to their effect as an express warranty of quality later.

I turn next to s 14(1) on which the respondents also rely. The most that the respondents made known to the third party about the purposes for which the herring meal was required was what I have previously termed a ‘range of purposes’. The extent of that range was limited to what their agent in London had learnt from the respondents in the course of previous dealings as to the nature of the respondents’ business. The range so made known included use as an ingredient in feeding stuffs for many kinds of domestic animals and poultry. What it did not include was use as an ingredient in feeding stuffs for mink. This seems to me to be conclusive that even if the third party knew that Norwegian herring meal was a commodity which might be used as an ingredient in the diet of mink, use for that purpose can neither be nor form any part of the particular purpose for which the goods were required which was made known by the buyer to the seller, so as to give rise to the implied condition under s 14(1) that they should be reasonably fit for feeding to mink. My Lords, it will

already be apparent that for the reasons which I have already advanced in discussing ‘range of purposes’, the decision of this House in Henry Kendall & Sons (a firm) v William Lillico & Sons Ltd that the fourth parties were liable to the third parties for breach of the condition implied under s 14(1) in my view goes to the utmost limit of what can be held to be a ‘particular purpose’ within the meaning of that section without amending the Act itself. However desirable it may be to make such an amendment, to do so lies beyond the competence of this House of Parliament acting alone - even in its judicial capacity. I myself would distinguish that part of the decision in Kendall v Lillico whenever I can. I do not think that it is open to your Lordships to extend it.

There are at least two relevant distinction between the facts in the second appeal and those in the appeal between the third and fourth parties in Kendall v Lillico. The first I have already mentioned. Neither expressly nor by implication had the respondents ever made known to the third party that the range of purposes for which they required the herring meal included use as an ingredient in the diet of mink, whereas in Kendall v Lillico the third party had at least by implication made known to the fourth party that his range of purposes did include use as an ingredient in the diet of pheasants, for which it proved to be unsuitable. The second distinction is that at the time of the relevant contract between the third and fourth parties in Kendall v Lillico it was not known that there could be any characteristics of the commodity sold, Brazilian ground-nut extractions, which might render them unsuitable for feeding to pheasants that would not also render them unsuitable for feeding to all other species of animals and birds. As was pointed out by Lord Reid ([1968] 2 All ER at 456, [1969] 2 AC at 83) the information that the goods were required for feeding to pheasants as well as to other animals and birds would not in fact have enabled the fourth parties to exercise any skill or judgment which they then possessed other than that which was called for in selecting goods fit for the purpose of feeding to all kinds of animals and birds. In the instant appeal it was known that there were some characteristics of Norwegian herring meal, in particular the fat content, which might render it unsuitable for feeding to mink though not unsuitable for feeding to other animals and birds. The information that the herring meal was required for feeding to mink would in fact have enabled the third party to exercise skill and judgment in selecting goods fit for this

particular purpose and had it been given this information it is unlikely that, because of its high fat content, it would have selected the particular consignment of herring meal for delivery under the contract. It is true that, at the time, the reason for its not doing so would not have been the presence of DMNA in the consignment, of which it knew nothing, but its fat content which was much higher than was then thought to be suitable in a food for mink. But the fact that to its knowledge there was at least one characteristic which distinguished herring meal which was suitable for feeding to mink from herring meal which was suitable for feeding to some other animals was, in my view, sufficient to displace any inference that the respondents, who did not make it known to them that they required the herring meal for feeding to mink, showed that they relied on its skill and judgment to supply a meal which was suitable for that purpose. I recognise that, unlike the first, the second distinction is fortuitous. Fat content bears no necessary relationship to DMNA content. But if, as I have suggested earlier, the key to s 14(1) is reliance, mere knowledge by the seller that the goods may be required for use for feeding to mink is not enough. Unless they know that the goods are required for that purpose and the source of their knowledge is the buyer himself, there is no ground for any reasonable inference that the buyer was relying on the skill or judgment of the seller to select herring meal which is fit for feeding to mink, if there is any characteristic which distinguishes herring meal which is fit for that purpose from herring meal which is fit for feeding to other animals or birds.

Section 14(2) has not been relied on by the respondents in your Lordships’ House. The description by which the goods were bought was ‘Norwegian herring meal’. Goods of that description are normally used for a range of purposes, ie as feeding stuffs for a number of different species of domestic animals and birds. Milmo J held that ([1968] 1 Lloyd’s Rep at 487)‘There was no evidence to prove that any part of the shipment was unfit for other animals such as pigs and poultry’ and accordingly found that ‘there was no evidence which would have supported a finding that the herring meal was unmerchantable’. This finding the respondents do not seek to disturb.

Finally, I turn to the effect of the inclusion in the contract of the express warranty that the herring meal should be ‘fair average quality of the

season’. A term to this effect, often referred to as ‘faq’, is common in contracts made on the markets in commodities which consist of raw or processed animal or vegetable products. The business purpose of an ‘faq’ term is to enable the buyer and the seller to ascertain what their respective rights are under the contract at the time when the goods are delivered. It fulfils the same function as a physical sample in a contract of sale by sample. It provides a standard of comparison which enables the buyer to ascertain whether it has been departed from, by subjecting the goods to reasonable examination at the time of delivery. Sales by sample are dealt with in s 15 of the Sale of Goods Act 1893, which is based on the common law as it had been recently expounded by Lord MacNaghten in Drummond & Sons v Van Ingen & Co ((1877) 12 App Cas 284 at 297). The implied conditions under s 15(2)(a) that ‘the bulk shall correspond with the sample in quality’ and under s 15 (c) that ‘the goods shall be free from any defect, rendering them unmerchantable, which would not be apparent on reasonable examination of the sample’ are, in my view, related to one another. If the sample contains a latent defect not apparent on reasonable examination which would render it unmerchantable but the goods do not, it cannot have been intended that the buyer should be entitled to reject the goods under para (a) on the ground that the goods did not correspond with the sample in quality. The reconciliation of the two implied conditions is that ‘quality’ in s 15(2)(a) is restricted to characteristics of the goods which a reasonable examination of the sample ought to have revealed, ie characteristics which would be apparent on physical inspection of the sample and the goods and the application to them of such other tests as are customarily applied in the trade. The same principle ought, in my view, to be applied by analogy to ‘faq’ terms in contracts for the sale of commodities and to other contracts in which some object that can be subjected to physical examination is adopted as the criterion of quality to which goods are to conform. In my experience, this is how ‘faq’ is understood by dealers in commodities and, as the Court of Appeal ([1969] 3 All ER 1496, [1969] 2 Lloyd’s Rep 425) pointed out, the same principle has been applied to other contracts which were not strictly sales by sample, ie by Devlin J in F E Hookway & Co Ltd v Alfred Isaacs & Sons and by Sellers J in Steels & Busks Ltd v Bleecker Bik & Co Ltd. I accordingly agree with the Court of Appeal ((1877) 12 App Cas 284 at 297) that ‘fair average quality of the season’ relates only to such qualities as are apparent on an ordinary trade

examination or analysis of the goods. The presence of DMNA in the herring meal was not such a quality and no breach of the express warranty of quality has been established by the respondents.

I may add that if a breach had been established, general condition 3 would not, in my view, exclude the right of title to recover the consequential damage (in s 54 of the Sale of Goods Act 1893, called ‘special damages’) claimed in the second appeal. Under s 55 of the Act that right could only be negatived or varied by express words. There are no such words in general condition 3.

For my part I have reached the conclusion that it is not open to this House to allow the second appeal on the ground which commends itself to the majority of your Lordships or on any alternative ground. I would accordingly dismiss the second appeal.